Fair Employment Tribunal Northern Ireland Decisions

 
FAIR EMPLOYMENT TRIBUNAL

CASE REF: 84/01FET

28/02FET

140/02

CLAIMANT: Gerald Duffy

RESPONDENT: Ulsterbus Limited

DECISION

The majority decision of the Tribunal is that:-

1. In respect of case reference number 84/01FET the claimant was unlawfully discriminated against by the respondent on the grounds of his religious belief. The respondent is ordered to pay to the claimant the sum of £59,211.69 by way of compensation.
2. (a) In respect of case reference numbers 28/02FET and 140/02, the claimant

was unlawfully discriminated against on the grounds of his religious belief and also by way of victimisation. The respondent is ordered to pay to the claimant the sum of £19,950.00 by way of compensation.

(b) The claimant was not unfairly dismissed and the said claim is dismissed.

Constitution of Tribunal:

Chairman: Mr N Drennan QC

Panel Members: Mr G Bradley

Mr M Lee-Kelly

Appearances:

The claimant was represented by Ms S Bradley, Barrister-at-Law, instructed by the Equality Commission for Northern Ireland.

The respondent was represented by Mr P Ferrity, Barrister-at-Law, instructed by Macauley & Ritchie, Solicitors

REASONS

3. .1 The claimant presented to the Tribunal on 24 January 2001, an originating application in which he complained that, at various dates and times during the course of his employment with the respondent, he had been subjected to harassment and intimidation of a sectarian nature. He complained that the respondent did not take any or adequate measures to deal with the said harassment and intimidation and failed to provide a good and harmonious working environment. He referred to a number of specific incidents and matters upon which he wished to rely and also that, as a result, he subsequently had to go on sick leave due to depression from on or about 21 November 2000. The respondent in its notice of appearance, which it presented to the Tribunal on 7 March 2001, denied that the claimant had been unlawfully discriminated against on the grounds of his religious belief and/or political opinion. It further contended that the claimant had not made any complaints to the respondent in relation to harassment and intimidation of a sectarian nature, until after he had lodged his application to the Tribunal; that his allegations had been investigated under its harassment policy and it was of the opinion there was no evidence to support the allegations. It further stated that the respondent had done everything reasonably practicable to prevent the said discrimination. It also contended that the claimant's claim was out of time.

The claimant presented a further originating application to the Tribunal on 8 January 2002 in which he referred to the proceedings referred to above. He complained that he had been subjected to further incidents of sectarian harassment, culminating in an incident on 12 October 2001, when he had received an abusive telephone call in which he was told that if "if he ever drove an Ulsterbus again, it would be the last time". He complained of the failure of the respondent to take any or adequate measures to deal with these matters and that the respondent's attitude towards him had caused him further distress. He linked the further incidents of harassment to the ongoing investigation by the respondent into the matters, the subject matter of the original proceedings; and complained that it had failed to take any or adequate steps to ensure he was not subjected to further harassment. He further complained that, due to the further harassment and the respondent's attitude to him, he had resigned by letter dated 9 November 2001; and he had been subjected to further harassment on the grounds of religious belief and/or political opinion and had been victimised and constructively dismissed.

The respondent, in its notice of appearance presented to the Tribunal on 4 February 2002, in relation to the claimant's claim of constructive dismissal, denied that it had committed any breach of the claimant's contract of employment, which entitled him to resign and claim constructive dismissal. In a further notice of appearance presented to the Tribunal on 4 February 2002, in relation to the claimant's complaint of unlawful discrimination, the respondent set out, inter alia, the history of its investigation of the claimant's original allegations of sectarian harassment, the subject matter of the first set of proceedings, and its conclusion that, following the said investigations, his allegations of sectarian harassment had not been substantiated. In relation to the further claims, the subject matter of the second set of proceedings, it denied the claimant had been victimised or the subject of harassment on the grounds of his religious belief and/or political opinion. The respondent further stated that it had done everything reasonably practicable to prevent the claimant from being victimised or being the subject of harassment on the grounds of his religious belief and/or political opinion; it concluded that it had taken the claimant's complaints seriously, carried out a proper investigation of his complaints and come to a reasonable conclusion on the facts.

4. .2 By an Order dated 21 March 2003 the Tribunal made a "consolidation order" that the said claims (Case Reference Numbers - 84/01 FET; 28/02 FET, 140/02) be heard and considered together.
5. .3 By consent the Tribunal ordered that the title of the respondent be amended to Ulsterbus Limited, as set out above.
6. Insofar as relevant and material, the Tribunal made the following findings of fact in relation to the said claims of the claimant.
7. .1 The claimant is a Roman Catholic, who is married to a Protestant and has two children. The claimant commenced employment with the respondent in or about May 1995. Following an initial short period of training in Belfast he commenced employment in the respondent's bus depot (the depot) in Ballymena. Initially, he was employed as a shunter/cleaner at the depot. As a shunter/cleaner, he cleaned and refuelled buses, which involved, inter alia, driving duties in the depot itself. He also carried out some driving duties, outside the depot, when he drove the respondent's buses on private hire duties. In or about March 1999, he became a bus driver, based at the depot.
8. .2 The Tribunal was presented in evidence with various documents relating to the religious background of the operational staff, who were employed by the respondent at the depot. There were disputes between the parties about the accuracy of the said documents and whether all relevant employees had been included/excluded. The Tribunal was satisfied that the details produced by the respondent contained many inaccuracies; many of which the Tribunal found surprising given the knowledge of the local management of who was perceived to be a Protestant and who was perceived to be a Roman Catholic amongst the staff employed at the depot. In addition, there were included, in the details produced, details of the religious breakdown of staff who technically came under the management at the depot but who worked out of outlying 'sub depots' in the Ballymena area. In any event, the Tribunal was satisfied that there was a mixed workforce at the depot which, at any material time, was in the region of 60 Protestants/10 Roman Catholics. Whatever was the precise breakdown at any given date, the Tribunal considered that there was a significant minority of Roman Catholics employed and working at the depot.
9. .3 On or about 21 November 2000, the claimant went on sick leave from his employment at the depot following a visit to his General Practitioner, Doctor Purse. Prior to that date, he had visited his General Practitioner about a number of matters, including epigastric pain in or about 1997/8 for which he was treated with relevant medication. No specific cause was found for his complaint at that time; and he did not make any reference to his work in relation to this pain.

At his attendance with the doctor on 21 November 2000, he complained of depression and sleep disturbance. He complained of irritability and was noted to be worried. The doctor found no obvious cause for his depression and anxiety symptoms and noted his marriage was well and his children were thriving. However, he did inform the doctor that he hated his work. The claimant contended that, at that time, he had hair loss on his head (alopaecia); but this was not noted by his doctor. He was given anti-depressant medication and a sick line by his doctor. The claimant made a further three visits to his doctor in December and early January 2001, where there was not seen to be any improvement in his condition by his doctor. It was not until a visit in early February 2001 that he referred to an issue of harassment at work.

In view of his absence from work and, in accordance with the respondent's normal procedures in relation to the sickness notification by the depot manager, the claimant was referred to the respondent's company doctor, Doctor I. S. Hamilton in Belfast on 15 December 2000. Doctor Hamilton reported to Mr William H. Telford, a Protestant, the Northern Area Operations Manager, who was based at that time in Derry and who had senior line management responsibility for the Ballymena area, including the depot and for, in particular, the shunters/cleaners and drivers in the said depot. In or about 1995/6 Mr Telford's Office had been in the depot at Ballymena. He was the immediate line manager of Mr Tony Wylie, a Protestant, who was the depot manager at all material times relevant to these proceedings.

In a report to Mr Telford, dated 15 December 2000, Doctor Hamilton reported as follows:-

"This man has quite a pronounced depressive illness and he is significantly retarded with very low esteem poor sleep pattern etc.

There is little or no improvement to date after three weeks of anti-depressants.

He claims religious harassment in work as the predominant precipitating cause and complains that he has suffered this in the five years he has been in Ulsterbus. He has felt depressed for some considerable time but only recently been so bad and sought advice.

I feel he is likely to be off some time. Review 8/52".

The report was sent to Mr Telford, via the respondent's personnel office in Belfast who received it from Doctor Hamilton on or about 21 December 2000. The Tribunal is prepared to accept that, with the Christmas/New Year holiday period, Mr Telford did not receive the report until on or about 8 January 2001. In view of its contents and its specific reference to religious harassment Mr Telford spoke to Ms Heather Grant, who at that time was the Human Resources Adviser for Translink, the holding company for the respondent. It was decided to arrange a meeting with the claimant to discuss the contents of the doctor's report. Prior to this report, Mr Telford and Ms Grant had not been aware of any such complaints by the claimant.

The Tribunal is satisfied that, on receiving the report from Doctor Hamilton, they took the matter seriously and decided to arrange a meeting for as soon as possible. The meeting was arranged for Antrim, rather than the depot in Ballymena, and took place on 29 January 2001.

Clearly, in view of the contents of the doctor's report, it would have been better if the meeting had been arranged for an earlier date; but the Tribunal is satisfied that, whilst the delay was regrettable, it was a consequence of the holiday period and the varied and other commitments of Mr Telford and Ms Grant.

10. .4 By the date of the meeting, the claimant had issued proceedings to the Tribunal; though he did not inform Ms Grant or Mr Telford that he had done so at the meeting. He had signed his originating application on 22 January 2001 and this was received by the Tribunal on 24 January 2001. In addition, he had also prepared and signed a statutory questionnaire on 23 January 2001; which again he did not refer to at the meeting and which was received by the respondent on 31 January 2001. The claimant consulted his solicitor in or about early January 2001 and, on his advice, consulted with the Equality Commission in or about late January 2001/early February 2001.

At the meeting, Ms Grant took notes and subsequently prepared a minute of the meeting. The notes taken were very limited and it is apparent from the minutes that further matters, than were set out in the notes, were also discussed. The Tribunal is satisfied, prior to the report received from the company doctor, the respondent had not been aware of any complaint by the claimant of religious harassment. Given that the meeting was to discuss this complaint of religious harassment, the Tribunal is satisfied that reference was made, at the outset of the meeting, by Ms Grant to the respondent's harassment policy and why he had not made use of it. It does not accept, as the claimant has contended, that there was no reference to same. The Tribunal is satisfied that the minute is an accurate reflection of what was said at the meeting and, in particular, on this issue, namely "Ms Grant explained to Mr Duffy that the company had a harassment policy and was he aware of its contents? Mr Duffy said that he was, but he felt that he could not make a complaint for fear of what might happen to him".

The Tribunal is also satisfied that the minute accurately records that "Ms Grant asked was there anything in particular that happened which had made him go off ill in November". And the claimant replied, "No, there had just been a build up but there was nothing specific in recent months".

As it was felt the claimant was close to breakdown, the meeting was cut short. At the meeting, as set out in the minute, the claimant gave limited details in relation to any specific complaints.

11. .5 Doctor Hanley, Consultant Clinical Psychologist, saw the claimant on or about 1 February 2001, who reported in a letter dated 1 February 2001 to Ms Grant, which was received on 5 February 2001 - but, as set out in the letter, the contents had been clearly discussed by telephone immediately following the consultation. He concluded the claimant was suffering from moderate to severe stress related difficulties; was both anxious and depressed and was being treated with depressants and was not fit for work.

In the report, Doctor Hanley noted, inter alia, that the claimant had given detailed descriptions of various instances; though those were not set out in the said report. He referred to the claimant referring to a specific incident which he had brought to the attention of Mr Wylie, the date unknown, and about which he had been disappointed in Mr Wylie's response. Doctor Hanley also noted that the claimant had been reluctant to bring a formal complaint on the grounds it may have led to him being further targeted in some fashion.

12. .6 As stated above, the claimant's statutory questionnaire was received by Ms Grant on 31 January 2001. In the course of the questionnaire he set out a number of specific complaints, relating to harassment and intimidation of a sectarian nature:-

"(i) The Union Jack waved at my face and shouted up the fucking Pope you fucker.

(ii) Watch yourself in bed tonight because you'll get petrol bombed.

(iii) Buy a house in there as you will be burned out.

(iv) Make sure you put your flag out again or you won't have a house left.

(v) I had two sets of keys stolen at work and they turned up about 3 months later at work in places I had already looked, done to make me look stupid.

(vi) I had stones and oil and carry outs delivered to my house in my name and also food delivered to me at work.

(vii) Had my car hit at work.

(viii) In pay room talking about political subjects.

(ix) I had someone say to me "I wish the fucking troubles would start up again for you would be the first Catholic bastard I would shoot".

13. .7 A further meeting was arranged for the claimant at Antrim Depot on 8 February 2001 by Mr Telford and Ms Grant. As indicated above, by the date of this meeting, the respondent had received the questionnaire and the report from Doctor Hanley. Ms Grant and Mr Telford visited the Ballymena Depot immediately before they met with the claimant. They spoke to Mr Wylie and two of the Inspectors at the depot, Mr Simon Corrigan and Sean Glendinning, who are both Roman Catholic.

Although Ms Grant was aware she was due to hold the above meetings on 8 February 2001 and, in particular, with the claimant, she stated that, before leaving for the said meetings, she had signed and put out for the post the respondent's said reply to the questionnaire. The claimant says he received the reply to the questionnaire on 10 February 2001.

In the reply, reference, inter alia, was made to the meeting on 29 January 2001 and also went on to state:-

"Although requested to do so the claimant refused to make any specific allegations or name any individuals he alleged were involved as participants or witnesses".

The claimant was particularly upset, when he received the reply, to see the reference to the foregoing, as it did not refer to what had taken place at the meeting on 8 February 2001 where, the Tribunal accepts, some names and further details were provided by him.

The Tribunal is satisfied that, at this meeting, Ms Grant would have had a copy of the reply to the questionnaire which, as set out above, she had signed and left out for the post earlier that day before attending these meetings at the Ballymena and Antrim Depots. Thus, at the time of signing the questionnaire and leaving it for the post, the above reply to the questionnaire was therefore accurate. Ms Grant stated that she had prepared the reply, setting out what had taken place up until the meeting due to take place on 8 February 2001, as she had not had great expectations, given the claimant's reluctance at the previous meeting to go into any details/names, that this further meeting would advance the situation greatly. Despite this, the Tribunal is surprised that Ms Grant, before signing the reply and/or putting it into the post, did not await the outcome of the meeting on 8 February 2001. She did not do so; nor, after the meeting, did she make any attempt to stop the reply going out in the post that day and to have thus given herself further time to update/amend the reply to reflect the further information given at the meeting on 8 February 2001 and, in particular, to amend/update that section of the reply referred to above. However, although the Tribunal believe it would have been preferable, if she had done so, it does not consider that her failure to do, in the circumstances, was done in order to upset the claimant.

14. .8 The meeting at Ballymena with Mr Wylie and the two Inspectors, who were the senior members of management at the depot at that time, was to see, prior to the meeting with the claimant, if they could shed any light on the matter. The meeting was described by Mr Telford/Ms Grant as something in the nature of a 'fishing expedition', given the limited detail of the allegations known to them at the time. Typed minutes of these meetings were drawn up from notes taken by Ms Grant. Such notes were not verbatim; as clearly both Mr Telford and Ms Grant were involved in the discussions. Whilst there were matters set out in the typed up notes which were not referred to in the notes taken, the Tribunal did not consider, subject to what is set out below, that any differences between the manuscript notes and the typed up notes were of significance; but rather reflected the informal manner in which the interviews were conducted. The Tribunal was further satisfied that Mr Telford/Ms Grant were only seeking to ascertain from these persons what they could say in order to advance their knowledge of the matter before meeting the claimant; rather than to probe/question their responses in any depth. It was not part of any formal investigation, which had not commenced at that time. However, as set out below, there was one particular difference between the typed up notes and the manuscript notes, which required to be further considered by the Tribunal. Subject to this, the Tribunal was satisfied, on balance, that the typed up notes, whilst not perfect, were a reasonable summary of the main points which were made at the time of these interviews.

During the course of the meeting with Mr Wylie, the manuscript note of the meeting records:-

"5 - See before.

There are problems in the garage - religious/harassment".

There is no reference to this in the typed up minute of the meeting. As stated previously, the notes were not verbatim notes. Ms Grant explained her recollection of how this manuscript note came to be written. She said that Mr Wylie acknowledged there had been some problem previously in the garage; but when he had been asked whether this was to do with religious harassment he had said that it had not. In these circumstances she stated there was nothing further set out in the manuscript note and no reference had been required to be made in the typed up note of the meeting.

The majority of the Tribunal were of the opinion that Mr Wylie in fact, as recorded in the manuscript note, admitted to problems of religious harassment in the garage, but Ms Grant had failed, despite its obvious relevance, to include any reference to this admission in the typed up minute. The minority member of the Tribunal was prepared to accept Ms Grant's explanation; albeit he was surprised that Mr Wylie's response, even if it was in the negative, was not set out in the typed up note of the meeting. However, in accepting Ms Grant's explanation, he did so having regard to the accuracy of her note taking in relation to other matters at this meeting; and also, as set out later in this decision, at other meetings.

Ms Grant and Mr Telford also interviewed Mr Corrigan and Mr Glendinning.

Mr Wylie and the Inspectors were each asked to keep these discussions confidential.

Following the meeting with the Depot Manager and the Inspectors, Mr Telford and Ms Grant met the claimant at the Antrim Depot.

At the time of this meeting the respondent had not yet received from the Tribunal the originating application, which was not sent to the respondent by the Tribunal until on or about 13 February 2001, having been signed by the claimant on 22 January 2001 and presented to the Tribunal on 24 January 2001.

In the originating application, the claimant made a number of specific complaints, which compared with the specific complaints set out in the questionnaire; though with some minor differences of wording.

"(i) A Union Jack waved at my face and shouted "Up the fucking Pope you fucker".

(ii) Watch yourself in bed tonight in case you get petrol bombed.

(iii) Don't buy a house in there as you will be burned out.

(iv) I had two sets of keys stolen and they turned up about three months later in places I had already looked.

(v) I had stones, and oil and carry outs delivered to my house in my name and also food delivered to me at work.

(vi) I had someone say to me "I wish the troubles would start up again for you would be the first Catholic bastard I would shoot".

(vii) I had my car hit at work.

In particular, the Tribunal noted there was no reference to the complaint set out in the questionnaire of "the talking of political subjects in the pay in room".

15. .9 At the start of the meeting with Ms Grant and Mr Telford, the claimant arrived with a female relative. He was informed that, as the relative was not a fellow employee/trade union official, she could not attend the interview. The claimant agreed to proceed in the absence of his relative. Again, the Tribunal was satisfied the typed up minutes of the meeting, although not a verbatim note of what was said, were a reasonable summary of the principal matters discussed at the meeting. No mention was made at any time, in the course of the meeting, to the claimant of the existence of the claimant's Harassment advisers and/or their role.

At the conclusion of the meeting Ms Grant and Mr Telford, whilst acknowledging that the claimant was very nervous and tearful, also considered that he was very believable in what he had told them.

Following this meeting there was a decision to set up a formal investigation under the company's harassment policy. Members of the investigation team were Ms Grant, a Protestant, and Mr Malachy McGreevy, a Roman Catholic, who at that time was a Senior Engineering Executive in Translink.

16. .10 Mr Wylie sent a memo to Ms Grant dated 14 February 2001 which was received by her on 21 February 2001, in which he confirmed that the claimant had not made any allegation of sectarian harassment to him or any of the supervisors at the depot, prior to the visit to the company doctor in December 2000; and further there had been no complaints made by other employees in recent years.
17. .11 Mr Wylie also sent Ms Grant a copy of the accident report involving a car driven by the claimant on 12 September 1995. The report had been filled in by Mr Stephen Neilly, a shunter/cleaner at the depot at the time, in which he described the accident as follows:-

"I started bus to reverse to enable me to fuel bus. I looked in driver's mirror, put bus in gear, checked passenger mirror and released hand-brake. Meanwhile a car had reversed into a parking space and I then reversed into same. I stopped bus and applied hand-brake and reported accident to Inspector and Depot Manager".

There was a rough sketch of the accident and the report indicated that the car's door was damaged. It also stated that the bus had been travelling at 5mph before the accident and 5mph at the point of impact; whereas the car was travelling at 5mph before the accident and 0mph at the point of impact and was stationary.

The respondent is a self insurer and drivers of the respondent's vehicles are instructed by the respondent that at no time should they admit responsibility for an accident. That is a matter for the respondent, as insurer, to determine and, where appropriate, resolve with the third party, whose vehicle has been damaged.

18. .12 Mr McGreevy and Ms Grant met the claimant in Belfast on 19 February 2001. It was agreed between them that Mr McGreevy would take the lead in the questioning of the claimant, though Ms Grant would, if appropriate, also ask some questions. Her principal role was to be that of note taker. Both she and Mr McGreevy took manuscript notes at the time; though Mr McGreevy's were more limited, due to his lead role in the interview. Ms Grant prepared typed up notes of the meeting from her manuscript notes. Mr McGreevy was satisfied that the typed up written notes accurately recorded what had taken place at the meeting and also reflected the notes that he had taken; though the Tribunal does not believe that he ever formally checked the matter and gave his approval.

Mr McGreevy felt the claimant was unwell at the time of the meeting and extremely nervous. During the course of the interview he had had to reassure him and give him a number of short breaks. Prior to this meeting, he had noted that the claimant was generally reluctant to name names against the specific allegations that he was making. He found that the claimant, who was clearly finding the whole process difficult, had to be persuaded to volunteer names to the investigation team during the course of the interview.

The Tribunal is satisfied that the typed up notes, although not verbatim notes, reflected the principal matters/issues discussed at the meeting.

19. .13 The claimant, in evidence to the Tribunal, produced a journal/diary of events which he said he had made since going to see the doctor on 20 November 2000. It will be necessary to consider this diary in more detail elsewhere in this decision. In relation to his entry for the meeting with Ms Grant and Mr McGreevy on 19 February 2001, the Tribunal noted that he made an entry that, at the meeting, he had referred, in particular, to two matters which he had reported to the team namely:-

(i) Wish the fucking troubles would start up again because you would be the first Fenian bastard I would shoot; which he had reported to Mr Wylie who had said, "Forget it".

(ii) Handouts going about in the staff room where I took lunch at my table to stop going to Catholic shops; which he had brought up in front of Mr Simpson who had laughed.

The Tribunal is satisfied, these two specific matters were raised in the course of the meeting albeit the phraseology may not have been exactly the same; but the Tribunal was also satisfied that the typed up note of the meeting showed that a large number of other matters, but not referred to by the claimant in his diary entry, were also discussed during the course of the meeting.

20. .14 Following the meeting with the claimant, Mr McGreevy and Ms Grant held a series of meetings with employees, whom they considered on the basis of the information before them to be relevant, at the Ballymena Depot on 20 February 2001, and 22 February 2001, as part of the said investigation. Again, the format was similar to the meeting with the claimant; with Mr McGreevy taking the principal role and Ms Grant acting, mainly as a note taker; though she did also ask some questions. Again, Ms Grant prepared typed up notes of each interview from her manuscript notes. Mr McGreevy agreed with these notes and did not seek any changes on the basis of his own limited manuscript notes. Again, the Tribunal concluded that the typed up notes were an accurate reflection of the main thrust of what was discussed and the major points raised and the answers given - though it equally understood each and every question and answer was not set out or referred to in the typed up note of each meeting. The Tribunal considered that it would be unrealistic to expect that to have been done in the course of such an investigation.
21. .15 The investigation team, of Mr McGreevy and Ms Grant met Mr Wylie the depot manager on 20 February 2001. On the same day the team met Stephen Arrell, a Protestant, and fellow shunter; Mr Martin McCormick, a Roman Catholic driver; Mr Simon Corrigan, the Inspector; Mr Wallace McWilliams, a Protestant, who worked as a Clerk in the pay in room on the administrative side; Ms Agnes Conway, a Roman Catholic cleaner; Mr Harry Dunlop a Protestant driver who was the uncle of the claimant's wife.
22. .16 On 22 February 2001 the investigation team met Mr Stephen Neilly, a Protestant, who like the claimant had also subsequently become a driver at the depot. He was accompanied by his trade union representative, Mr Murphy. In addition the team met Mr Bobby Colvin, a Protestant diesel fitter, who worked in the garage; and also Mr Darren Crawford, a Protestant, who no longer was employed by the respondent, but who had previously been employed by the respondent as a painter in the garage. Mr Neilly, at his meeting with the investigation team produced a photograph taken by him at Christmas 1999 of the claimant's children at the arrival of Santa and his reindeers at the Tower Centre, Ballymena. Nothing in the photograph assisted the Tribunal in determining whether the photograph had been taken by Mr Neilly, as he maintained, at the invitation of the claimant or not. The claimant maintained it had not. The Tribunal also found it somewhat curious that Mr Neilly had retained a copy of such a photograph. In the circumstances, the Tribunal did not find the photograph of assistance in determining the issues in this matter.
23. .17 Following each interview, there was a brief general discussion between Ms Grant and Mr McGreevy about what had taken place. Following the final interview on 22 February 2001, there was further discussion between them as they returned by car to Belfast. A telephone call took place between Mr Portis, a Protestant, and Ms Grant on 23 February 2001. Ms Grant prepared a minute of that telephone call, which the Tribunal is satisfied accurately recorded the principal matters discussed during the said telephone call. Mr Portis, who had been employed by the respondent as a driver was by then no longer employed by the respondent, and was not available for a face to face meeting. The result of that call was discussed between Mr McGreevy and Ms Grant later on 23 February 2001. Mr McGreevy and Ms Grant further considered the matter over the intervening weekend; and by 26 February 2001 they had decided on the result of the investigation. It was not clear, to the Tribunal, there was any meaningful contact over the weekend between them. The Tribunal would have expected, in a serious investigation, such as this, that there would have been a specific meeting of the members of the team to review and discuss the evidence and prepare a minuted report. Such a report was not prepared for some time, as seen later, nor provided to the claimant. There was no disagreement between them about the result. They were both anxious to inform the claimant, and the other principal parties to the investigation, as soon as possible of the result.
24. .18 Mr McGreevy and Ms Grant met with the claimant at his home on 26 February 2001. They told him that the investigation was complete; and after a number of witnesses had been interviewed they had decided there was no evidence to support his claim of harassment. The Tribunal does not believe, at this stage, any detailed reasons for their decision, save as set out below, was given to the claimant. The Tribunal has equally no doubt that the claimant would have been very upset to have been told of the decision which had been reached by the investigation team. It was also satisfied that, at the conclusion of the meeting, there was some discussion about the claimant's ongoing Tribunal claim. It was confirmed to him that it was a matter, if the claimant decided to pursue his claim in the Tribunal, to be dealt with by the parties' legal representatives; and, in relation to that aspect, contact would not be through Ms Grant. However, it is also satisfied that Ms Grant made clear that, in relation to issues relating to his return to work/illness/medical appointments, she would still be the point of contact in the respondent.

The Tribunal was satisfied that, in the course of this meeting, Mr McGreevy also raised the issue of what Mr Neilly had said, in the course of his interview about a private hire duty he and the claimant had carried out on the Remembrance Sunday in or about November 2000, shortly before the claimant went off sick. Both parties agreed the issue was raised; but the claimant contended that he had been so shocked and knocked back, after being told the result of the investigation, he had not made any response. In support of this he relied on his diary/journal entry, where he had made such a reference. The typed up note prepared by Ms Grant of the meeting stated that the claimant confirmed that he and Mr Neilly were on a private hire on that day (which was clearly correct); but he had also confirmed that they had stayed together all day, it was a friendly atmosphere and that nothing had happened and that he and Mr Neilly had sat on the bus and chatted most of the day. The Tribunal was satisfied Ms Grant's note was an accurate record of what the claimant said at that time. The Tribunal did not consider, as set out elsewhere in this decision, that it could place any reliance on entries in the claimant's diary/ journal.

Insofar as he gave the claimant any further reasons for the decision, Mr McGreevy informed the claimant, inter alia, that he had concluded the witnesses had come across as honest and there was no sign of a cover up.

25. .19 The investigation team also orally informed Mr Crawford and Mr Neilly at the depot in Ballymena on 26 February 2001 of the result of the investigation and also telephoned Mr Colvin who was on sick leave on that day.
26. .20 Ms Grant subsequently prepared a file note, dated 29 March 2001, of the result of the investigation, in accordance with her normal practice to ensure that there was a note on file for the company's record. Whilst the Tribunal is satisfied that Mr McGreevy did not dissent from its content, when he received a copy from Ms Grant, it was surprised he did not apparently play any part in the drafting of same. This note was not sent to the claimant, albeit it set out the detailed reasoning of the team.

This report set out the history of the matter and then set out the investigation team's conclusion in the following way:-

"…

When interviewed, Mr Duffy always appeared very nervous, he suffers from alopecia and is a believable witness.

The investigating team interviewed all employees Mr Duffy had alleged were harassing him, also the District Manager, Inspectors and other witnesses which were named by him or his alleged harassers. There was no evidence at all to support the allegations Mr Duffy had made, nor was there anything to suggest a cover up. All those interviewed appeared genuine and to be telling the truth.

Some of the witnesses were able to confirm being aware of the allegations which Mr Duffy had made in relation to deliveries being sent to his home which he had not ordered, but there was no indication that there was anyone involved from his depot and it appeared that most of their awareness came from Mr Duffy talking to his colleagues.

The driver whom Mr Duffy named as his main harasser had accompanied Mr Duffy doing a private hire the week before Mr Duffy had gone off on the sick. The private hire was on Remembrance Sunday and turned out to be a "UVF - type" organisation. Both Mr Duffy and the alleged harasser agree that they sat all day on the bus and chatted while they were waiting for the return journey and that there was no animosity at all between them.

It would be the investigating team's conclusion that there is no evidence to substantiate this claim, however, it is obvious that Mr Duffy is not well and may suffer from some sort of paranoia.

…" .

27. .21 Mr McGreevy accepted in evidence to the Tribunal that, before concluding the investigation, Mr Joe Simpson, the inspector, had not been interviewed by the investigation team. By early 2001, Mr Simpson was retired and no longer employed by the respondent. He stated, in evidence, that he had been informed by Ms Grant that when Mr Simpson had been asked to make himself available for interview he had declined. Mr McGreevy pointed out, that, in view of Mr Simpson's retirement, he could not compel Mr Simpson to attend. He did not send him a written request; but felt even if he had done so the result would have been the same. Mr Simpson did attend the Tribunal. The Tribunal is satisfied that, it is most unlikely a letter from the investigation team would have resulted in any different outcome. It will be necessary to return to this matter again elsewhere in this decision.

Mrs J Farrar also was no longer in employment with the respondent at the relevant time. It seems no written request was sent to her, asking her to attend for interview. Mr McGreevy said that it had been decided to proceed with Ms Conway's interview, who was available; and who did not corroborate the claimant's complaints. With hindsight, he acknowledged that it might have been better, at least, to try to secure the attendance of Mrs Farrar.

Mrs Farrar did not attend the Tribunal to give evidence. The claimant, at the hearing, sought to have admitted in evidence a statement signed by her, which the Tribunal agreed to do under its wide powers to admit such evidence; but it made clear that, in doing so, this was subject to any consideration by the Tribunal about the weight to give to such a statement and in circumstances where the respondent had had no opportunity to cross examine her.

The claimant said that Mrs Farrar was depressed and had been advised by her doctor not to attend the hearing of the Tribunal. No relevant medical evidence was produced to support this.

The statement of Mrs Farrar, produced by the claimant was dated 5 May 2001. Prior to the hearing, it had not been produced by the claimant to the respondent. It was clearly written out in the claimant's hand writing and, whilst it referred to a number of the claimant's claims, the subject matter of these proceedings, it did not, apart from her signature, set out whether she in fact agreed or not with the matters set out and/or her involvement in and/or her knowledge of the matters set out. In the circumstances, the Tribunal concluded that it could not place any reliance upon this statement.

28. .22 By notice dated 6 April 2001, the respondent's solicitor sought further and better particulars of the claimant's claim before the Tribunal and, in particular, the specific matters which had been referred to in the originating application presented on 24 January 2001. Replies were subsequently provided on 29 June 2001. In the said replies, further specific details and/or approximate dates were provided in relation to those matters set out in the originating application and which, in terms, amplified those complaints already made.

In addition, further matters were referred to, which the Tribunal noted had not been raised by the claimant in his originating application, his questionnaire or indeed during the course of the investigations referred to previously.

By way of example:-

"…

(4) Around Christmas 1997/98 the applicant had been informed that if he got his work done early he could get away early. When he approached Inspector Simpson at about 7.30 pm, he told him to go back to the fuel hut and that he would check on him every half hour until 9.30 pm. The applicant contends that it was Inspector Simpson's practice during his employment to subject him to less favourable treatment than that given to Protestant workers. For example, whilst other shunters were allowed to drive the buses up to clean and refuel, he told the applicant that he did not want to see him driving a bus. On one occasion the applicant told Inspector Simpson that he had had enough of him picking on him and for six months he received no overtime, whilst other workers continued to get extra hours.

(6) In or around the latter part of 1999 the applicant was sitting with Stephen Neilly and another driver on a private hire bus, having each brought a bus of bandsmen to the Ormeau Road. A band member who had remained on the bus commented that he hoped that they would get home alright that night. Stephen Neilly responded that they would get home safely by putting the applicant in front where he could show his crucifix.

(7) In or around December 1999, at the time of the appointment of Martin McGuinness as Education Minister, the applicant was required to get off a bus he had been driving as it had been allocated to another driver, Jack McHendry. A comment was made to the applicant by Mr McHendry that, "Yous think you are taking over everything, what sort of education are youngsters going to get now". Mr McHendry then proceeded to thump the applicant, causing him to fall to the ground.

(9) In or around July 2000, the applicant invited his co-workers to the evening reception of his forthcoming marriage. No-one came to the function and no- one offered him a wedding gift or "whip round" as was the normal practice. The applicant was tied up in the yard and was given a "doing" with eggs contrary to custom in the yard. When the applicant returned to work after his honeymoon, Inspector Corrigan handed him a disciplinary charge allegedly for sleeping in one day prior to the wedding. The applicant contends that he phoned in sick that day and that the charge was unwarranted and another example of harassment by the respondent.

(10) In or around August 2000 the applicant was sitting in the pay in room when about ten drivers came in and started referring to the LVF and UVF and saying what a hero Johnny Adair was. The applicant's manager, Tony Wylie, was present and was smiling during the conversation.

(11) On Remembrance Day in November 2000, the applicant was asked to take a bus to a commemoration in Belfast. Stephen Neilly was also taking a bus up and when they arrived to pick up the passengers he asked the applicant whether he knew whom he was picking up. He told the applicant that it was young members of the Ballymena UDA. When they arrived in Belfast Mr Neilly proceeded to point out people who had been involved in picketing at Harryville Church and those that had been in jail for offences.

Reference was also made, for example, not only to the display of blue and white bunting and a calendar with Mr Paisley's face on it but also the display of notices about parades in the fuel hut, which latter claim had not been previously referred to.

29. .23 The claimant was again seen by Doctor Hamilton, the company doctor on or about 22 March 2001, who sent a report to Mr Telford dated 29 March 2001. In this report, Doctor Hamilton stated, inter alia:-

"Whatever the merits or otherwise of Mr Duffy's claims of harassment there is no doubt he remains profoundly depressed despite high dose of anti-depressants. There is no change since I last saw him. I am not optimistic about early resolution.

Review 2-3 months".

30. .24 By letter dated 14 April 2001, the claimant was invited to a meeting at Belfast Central Station with Mr Telford/Ms Grant in reference to the said medical "with a view to your return to work".

The Tribunal is satisfied that this meeting was originally arranged for 23 April 2001 but the date was subsequently changed to 25 April 2001, as is clear from Ms Grant's diary for the said dates.

In contrast the claimant's diary/journal incorrectly stated that the date of the meeting was 23 April 2001.

Prior to the hearing, the respondent did not produce on discovery any record of what had taken place at this meeting. During the course of the hearing, a typed record of the meeting was produced. There seemed to be some confusion in which particular file Ms Grant had placed this document and from which it had now been produced. Ms Grant had apparently a number of different files relating to the claimant. The Tribunal is satisfied that, at all times, it was a relevant document, as was Ms Grant's diary entry and both should have been discovered prior to the hearing as part of the informal discovery process in which the parties had engaged. The Tribunal was also satisfied that there was no good reason given for not doing so until during the course of the hearing - if a proper search of all relevant files had been carried out in time.

Also, prior to the hearing, the respondent failed to discover to the claimant Dr Hamilton's report dated 29 March 2001. The Tribunal is satisfied the report was a relevant document and also should have been discovered in advance of the hearing.

31. .25 The Tribunal is satisfied that it was made clear to the claimant at the meeting that the harassment case was a separate issue and was not the subject matter of the meeting and he was also reminded that the investigation had been finalised. In this context however, the Tribunal was satisfied that the claimant did raise an issue about the manner in which the investigation had been carried out; and, in particular, about the manner in which witnesses had been informed and, in particular, Mr Simpson about the investigation. This is not noted in the record of the meeting; but it was common case that the claimant did raise such an issue. Indeed, it also has to be noted there is reference to it in the claimant's diary/journal entry for the meeting, albeit as set out above, this was incorrectly dated 23 April 2001. The issue, which appears to have been raised by the claimant, was that he asked why Ms Grant had phoned up Mr Simpson a week before the investigations were carried out. His complaint, in essence, was that this had given Mr Simpson an opportunity to forewarn the other witnesses, before the investigation had taken place.

Ms Grant agreed, in evidence, that she had been stunned by the claimant's allegation that, Mr Simpson had been given such a call by her. As a result, she did not deny that there might have been a period of stunned silence. However, she was adamant that she had not had a conversation with Mr Simpson or indeed met him prior to the Tribunal hearing. The Tribunal was prepared to accept her assurance that there had been no such conversation by her with Mr Simpson; and that she had asked Mr Wylie to make the arrangements for the interviews by the investigation team. The claimant maintained that, in response, Ms Grant had suggested that the call had not been made by her but another person in the office. This Ms Grant specifically denied. The Tribunal concluded that she was most unlikely to have made such a response; where her office had not made the detailed arrangements, but rather had left them to Mr Wylie. She said she had asked Mr Wylie to make the arrangement with Mr Simpson, rather than herself, as she felt he might have had some success, having worked with him prior to his retirement. The Tribunal was prepared to accept her reasons for doing so.

The Tribunal noted that, the claimant said this information, that Mr Simpson had been contacted from Belfast about the claimant's complaints and that he had then been in a position to forewarn the various witnesses, before the investigation team arrived, had come from Mr Dunlop on a visit to his house. He stated that Mr Dunlop had said to him that Mr Simpson had told him of the above conversation and he had also said, "There will be boys running around the yard sweating about this". The claimant said that this was one of the last occasions, other than for a family funeral, that Mr Dunlop had been in the claimant's house; and indeed, he had said, as he left, that he would not be back in case his car was seen and he got petrol bombed.

Mr Dunlop denied in evidence to the Tribunal that any such conversation had taken place, which denial the Tribunal accepted. In addition, the Tribunal also noted that, by the time the investigation team went to Ballymena, there had been the earlier meetings involving Mr Wylie and the Inspectors. The arrangements for the timetabling of the various interviews with the investigation team had also had to take place before their arrival. Whilst Mr Wylie and the Inspectors had been asked to keep their conversations with Mr Telford and Ms Grant confidential, the Tribunal believes that it would have been naïve to expect that there would not have been some discussion amongst the staff. The Tribunal was satisfied Mr Wylie had been asked to contact Mr Simpson by Ms Grant, to see if he was willing to attend such an interview, albeit he had then declined; and Mr Wylie, as instructed by Ms Grant, had also arranged for attendance of the various persons at the depot, whom the investigation team wanted to interview. Mr Neilly, in his interview, on 22 February 2001 with the investigation team, whose series of interviews were spread over a two day period, had indicated that he had been told by Mr Dunlop, and other unnamed drivers, following their interviews on 20 February 2001 that he was being accused of sectarian harassment. This confirmed, in the Tribunal's view, that there must have been some discussion amongst the staff, prior to the interviews and over the two day period in which the interviews took place; however much the investigation team may have wished the matters to remain confidential.

32. .26 In the course of the meeting, on 25 April 2001, the Tribunal is satisfied the claimant informed Mr Telford/Ms Grant that he did not feel any better and did not feel that, at this time, that he had any thoughts of being able to return to work. The Tribunal is further satisfied that in a discussion about a return to work reference was made by Mr Telford/Ms Grant to the possibility of the claimant's returning to the Antrim depot, which he rejected and/or about whether there was some other job he could do, such as a shunter/cleaner in Belfast. In relation to the latter suggestion the claimant indicated he had not given this consideration. The majority of the Tribunal were not satisfied that this was a welfare meeting, as described by Ms Grant and Mr Telford; and, despite the contents of the medical report, was for the purpose of obtaining his return to work and placing pressure on him to do so. The minority member of the Tribunal considered it was a welfare meeting during which the issue of the claimant's return to work was discussed, but only in the context of when he was fit to do so in view of his long period off work.
33. .27 During the early part of 2001, the claimant had continued to attend his General Practitioner, Doctor Purce on a number of occasions complaining of continuing symptoms of depression for which she prescribed anti-depressant medication. He was referred by his General Practitioner to Doctor McFarland, Consultant Psychiatrist on 21 June 2001.

The claimant in his diary/journal records that he visited his General Practitioner on 24 April 2001. Again, this was the date of the meeting with Ms Grant/Mr Telford. The date in the journal/diary is clearly wrong and the visit, from the doctor's record, was in fact on 27 April 2001. On that visit she encouraged him, inter alia, to try to do something else or to do a course.

34. .28 The Tribunal noted that, despite what the claimant had told Mr Telford/Ms Grant at the meeting on 25 April 2001 about his fitness to return to work and lack of recovery, he in fact signed an application form on 5 May 2001 for a job with Homefirst Community Trust [Homefirst] as a driver/porter (with caring duties) which was received by Homefirst from the claimant on 10 May 2001. The Tribunal is satisfied that this post must have been advertised at the time of the said meeting. However, the claimant gave no indication at the meeting of his intention to apply for this or any other post.
35. .29 The claimant attended an interview for the position in or about May/June 2001. In the application form he stated, inter alia, that he was not suffering from any physical infirmities/medical condition which might impair his driving. This was stated, although at that time he was informing the respondent and his own General Practitioner, he was not fit to return to work. The Tribunal was unimpressed with the claimant's evidence that he had wanted to do this for his self esteem to see how he would do at interview. The Tribunal is satisfied that this was a serious application for the post, which the claimant intended to follow through and take up, if successful.

It subsequently also emerged, in evidence, that the claimant had also been less than truthful when applying for this job and earlier for his employment with the respondent. It emerged that he had a number of previous convictions, inter alia, for driving offences but, in particular, a conviction for theft of money from a previous employer in 1992 for which he had been placed on probation for a period of two years. He conceded in evidence that he had been required, as set out on the application form, to disclose the said convictions when he applied for his post at Homefirst (and indeed earlier with the respondent as a driver); and that he had failed to do so. He stated that everyone had done something they regretted and he wanted to have that part of his life left out of it. He agreed what he had stated to Homefirst, and earlier to the respondent, was in fact not true.

36. .30 By letter dated 20 June 2001, he was informed by Homefirst that, following interview his name had been placed on a waiting list, which expired on 13 June 2002.

The Tribunal noted that, although the claimant visited his General Practitioner on a number of occasions in or about May/June 2001 he did not apparently inform her of the above development. The Tribunal is satisfied that if he had done so, she would have made a reference to this in her notes which, within the limitation of a doctor's notes, were full and referred to anything which appeared to Doctor Purce to be relevant. The Tribunal has no doubt that the claimant's success at interview and having been placed on the waiting list, as set out above, would have been, if she had known, something of relevance to her as she considered his condition. This is particularly so, since she had encouraged him to try to do something else or to do a course. Indeed, Doctor Purce's notes record no improvement during this period and a situation of continuing depression. Indeed, it was in this context that the claimant was referred to Doctor McFarland, Consultant Psychiatrist in June 2001 and was seen by Doctor McFarland in October 2001.

The claimant was subsequently offered the job with Homefirst on 18 October 2001, subject to relevant checks. As set out in the GP's record, on a visit on 25 October 2001, albeit he had not referred to it before, he informed his General Practitioner that he had obtained a job with Homefirst. In the Tribunal's opinion, as indicated by the said note, the claimant had decided to accept by that date the said offer of employment by Homefirst, which had always been his intention, as set out previously, when he originally attended the interview. During the checking process by Homefirst, the convictions referred to above were revealed. These were discussed with the claimant on 5 November 2001. In light of his explanation, on or about 6 November 2001 Homefirst decided to proceed with the job offer made to the claimant. The Tribunal is satisfied there were subsequent discussions, in the following months, about an actual start date and the claimant did not actually start work for Homefirst until 10 January 2002; but that was in the context of a decision by the claimant to accept the offer, as stated to his General Practitioner. Further, the Tribunal is satisfied that the said decision had been taken before he sent his letter of resignation of 9 November 2001 and received on 14 November 2001 by the respondent, and to which reference shall be made later in this decision.

37. .31 Arising from the receipt of the replies to further and better particulars Ms Grant wrote to the claimant on 27 July 2001 in which she stated:-

"You have now made a number of additional allegations of harassment in your replies in your Tribunal case which you had not made during our four previous meetings or in your FET1 or questionnaire".

He was informed these allegations would have to be investigated and was told it would be of assistance to the investigation to interview him as part of this process. He was asked to contact Ms Grant if he wanted to be interviewed.

The claimant did not reply and Ms Grant sent a further letter dated 22 August 2001, when he was informed that although it would be more difficult to conduct the investigation, without his assistance, the respondent would nevertheless proceed with the investigation.

38. .32 A further meeting took place with the claimant with Mr Telford/Ms Grant on or about 8 August 2001 at his house. The Tribunal was satisfied that this was not intended to and did not relate to the ongoing Tribunal proceedings; and was, a follow up to the previous meeting in April 2001. Dr Hamilton had seen the claimant on or about 19 June 2001 when he reported, 'this man still seems significantly depressed and I do not feel is relatively well enough to resume. He still has a perception of significant harassment at work and I do not feel is likely to be fit to resume for some considerable time'. This report, although relevant was also not discovered until the hearing of these proceedings. Again, the majority of the Tribunal was not satisfied this was a welfare meeting and was a further attempt, despite what was stated in the medical report, to place pressure on the claimant to return to work.

During the course of the meeting there were discussions, inter alia, about the possibility of various options in relation to job location and even working for another company within the Translink Group, such as Northern Ireland Railways. The claimant, indicated to Mr Telford/Ms Grant that he was not really keeping any better and was not ready to think about such matters at that time. The claimant made no reference to what had already taken place with regard to his involvement with Homefirst.

39. .33 In light of the claimant's refusal to attend a further interview, arising from the additional allegations set out in the replies to the particulars, Mr McGreevy/Ms Grant then conducted a series of interviews with a number of employees in relation to these further matters.
40. .34 On 4 September 2001, the investigation team of Mr McGreevy/Ms Grant met with Mr McHendry, a Protestant driver, in relation, in particular, to the claimant's complaint, as set out in the replies referred to previously, to the incident in December 1999 involving both men. As before, the manner in which the investigation team conducted this interview and other interviews as part of this further investigation was similar to their previous investigation. Again, the Tribunal is satisfied the typed up notes reflected the main matters that were discussed during the course of that meeting.
41. .35 The Investigation team also conducted interviews on 4 September 2001 with Mr Neilly, who was accompanied by his union representative, Mr Murphy, Mr Glendinning, Mr Colvin, Mr Corrigan, Mr Wylie and Mr Telford.
42. .36 The investigation team drew up a report following their investigation of the additional allegations. Their report primarily centred on what they considered the most serious allegation, namely the incident involving Mr McHendry. It was not clear when the investigation team met to draw up this report and reach their conclusions in relation to this or any other matter set out in the report.

After reviewing the conflict of evidence in the matter and, in particular, the conflict of whether it was only to do with bus allocation or had some political element to it, they concluded the complaint had not been established to their satisfaction.

They referred, in particular, to the difficulty of reaching a conclusion when it was one person's word against another and there were no witnesses and in circumstances were the claimant had declined to be interviewed.

Their principal areas of doubt set out in the report were as follows:-

"…

(a) Mr McHendry may or may not have made comments about Mr McGuinness, the Education Minister; we have only one word against the other.

(b) It has been confirmed by Mr Glendinning, Mr Duffy was on the wrong bus, and the investigation team believed this was capable of initiating the incident.

(c) Mr Glendinning confirmed the bus change over took place back from the stand.

This concurs with Mr McHendry's version.

(d) It seems strange to the investigating team that Mr Duffy could have overlooked an incident such as this during the first round of investigations.

(e) Mr Glendinning, who saw Mr Duffy immediately after the event, did not notice any dishevelled or dirty clothes consistent with Mr Duffy falling to the ground on a December day as he alleges.

The investigation team therefore conclude that the findings of the original investigation still stand.

In relation to the other allegations there was no evidence to support Mr Duffy's claim".

There was no evidence before the Tribunal that a copy of this report was shown or given to the claimant. The Tribunal noted that there was no detailed analysis or reasoning in relation to the matters other than the McKendry incident.

43. .37 Following a request by Mr Telford for an update on the claimant on 1 November 2001, Dr Hamilton on 2 November 2001 reported that although he had not seen the claimant for some months he "would be guarded regarding his likelihood of early recovery". Again this report was not discovered, although relevant, until the hearing of these proceedings. This report appears to have been obtained following a meeting between the claimant and Ms Grant and Mr Telford on 31 October 2001, to which reference shall be made subsequently in this decision. At the meeting the claimant was told he would be required to go for a further medical with the company doctor to which he agreed. At the meeting he did not say anything with regard to the offer of the job with Homefirst, referred to previously.
44. .38 The claimant wrote to Ms Grant, by letter which was received by her on 25 September 2001, in which he referred to incidents which had occurred on 19 September 2001. He stated he had received a phone call from a call box with someone whistling the 'sash' to him over the phone and subsequently received a Chinese carry out at his home which he had not ordered, but which order docket included his address and phone number which was ex-directory.

In the letter he also complained that this was a further act of sectarian harassment which he believed could only have come from employees of Ulsterbus. He suggested it was similar to the previous actions in which they had been involved and he was being victimised for making a complaint. He reminded Ms Grant he was off work with depression because of the earlier sectarian and religious harassment from employees of the company, and the upset the above harassment had caused to him.

His diary/journal entry for 19 September 2001 referred to this call and delivery and that he had reported it to the Police. No evidence was produced of the Police making such a record of any such report.

45. .39 The claimant also recorded in his journal/diary on Sunday 8 July 2001 that there had been a phone call to his home, taken by his wife, from a call box from someone indicating the call was from the Police and asking for him. He noted that he had contacted Ballymena Police Station, who had denied looking for him. He had also asked for this to be recorded by the Police. Again, no evidence was produced of the Police making a record of any such report.

Although this call was said to have taken place on 8 July 2001, the claimant made no reference to this when he met Mr Telford/Ms Grant on 8 August 2001. He also did not refer to this call in his letter of 25 September 2001. It is correct however to note that this call was referred to in connection with the claimant's second set of proceedings (Case Reference Number 28/02FET, 140/02) and in particular, the replies to particulars furnished on 24 January 2003 by the claimant in relation to the second set of proceedings.

46. .40 Ms Grant replied to the letter of 25 September 2001 by letter dated 28 September 2001. She suggested an investigation of the matter by the Police and also stated:-

"… should you be able to produce any evidence that would indicate the involvement of an Ulsterbus employee, I can assure you this matter will be fully investigated. However on the information you have provided there is no such indication.

I would suggest to you that this matter should be investigated by the Police and would urge you to contact your local Police Station as soon as possible.

Should any more evidence come to light, or if I can be of any further assistance, please do not hesitate to contact me".

47. .41 The claimant wrote a further letter, dated 15 October 2001, in which he complained, inter alia, of further sectarian harassment and victimisation. He referred, in particular, to a further telephone call which he had received on 12 October 2001 at 9.40 pm, when the caller had said to him, "You bastard, you Fenian fucking bastard if you ever drive an Ulsterbus again it will be the last time. Do you hear me you fucking Fenian bastard. Go down south you fucker drive down there you bastard you bastard you fucking bastard". He said the number had been withheld when he subsequently checked. He also complained about the investigation carried out by the respondent.

Ms Grant replied by letter dated 22 October 2001 repeating what she had stated, in her previous letter, about an investigation if he could produce evidence to indicate involvement of an Ulsterbus employee and further reiterating that this letter similarly gave no such indication. She referred to contacting the Police and to consideration of getting his telephone number changed and the possibility of tracing calls. She also stated that a thorough investigation had taken place and no evidence was found to support the claim.

The claimant's journal/diary entry for 12 October 2001 had an entry relating to the above call. The Police record for that day also records the claimant reported the above call.

48. .42 The claimant met with Ms Grant/Mr Telford on 31 October 2001 for a further meeting. The Tribunal is satisfied that the file note, prepared by Ms Grant, reflects the principal matters which were discussed at that meeting. This was, in essence, a follow up to the previous meetings on 25 April 2001 and 8 August 2001. At the meeting, inter alia, the claimant informed Mr Telford/Ms Grant that he now had a trace on his phone and hoped the issue of the phone calls would resolve. There was no suggestion, at the meeting, that the respondent was intending to start further investigation into the said phone calls. The claimant explained that in relation to his depression he was still not good but may be was a bit better. In a discussion in relation to a return to work he stated he was not ready yet and there was a general discussion about the claimant going to other depots or going to other jobs.

There were no further calls received by the claimant following the trace being put on his telephone.

At this meeting, the claimant gave no indication that he had obtained a job with Homefirst; nor did he suggest any intention of resigning his employment with the respondent because of what had happened.

49. .43 By letter, which seems to have been written on or about 9 November 2001 but received by the respondent on 14 November 2001, the claimant informed the respondent that he was resigning from his employment on 9 November 2001. He stated, inter alia:-

"… The reason is due to religious and sectarian harassment I have received during my time served with your company Translink Ulsterbus. I believe the company has failed to adequately address these matters and that continued contact with yourselves is causing me continuing depression. I feel I am being victimised and being subject to continuing harassment because I made a complaint. Therefore I feel myself, my wife and my family can take no more, so I feel because of all this and my condition I have no other choice but to hand you my resignation and try to put all these events behind me so that I can try to get on with my life".

Ms Grant replied by letter dated 5 December 2001, that she would give the claimant the opportunity for some time to reconsider his position; but he declined to take up that opportunity.

50. .44 Following the said resignation, the claimant and Ms Grant/Mr Telford and Mr McGreevy had no further direct contact in relation to the claimant's complaints, the subject matter of these proceedings.
51. .45 As set out previously, the claimant then presented to the Tribunal his second set of proceedings in January 2002 in which, inter alia, he complained of further incidents of sectarian harassment, since he had taken sick leave in November 2000, culminating in the telephone call of 12 October 2001, referred to above; and further that he had been victimised and constructively dismissed. He also complained of the failure of the respondent to take any or adequate measures to deal with these further acts of sectarian harassment and that these acts were connected to the ongoing investigations of the respondent in the earlier proceedings.

As set out in the statutory questionnaire, dated 8 January 2002, he concluded that, "due to the further harassment and the company's attitude he felt he could not longer bear to be in contact with the respondent and that he had tendered his resignation on 9 November 2001".

52. .46 Telephone numbers of staff, such as drivers, were held at the depot in the Inspector's Office to enable contact to be made by the Inspectors in relation to, for example, covering duties by a driver. The Tribunal was not satisfied that these were kept under such a level of security that a member of staff, if he had wished to do so, could not have obtained a driver's telephone number. The claimant by autumn of 2001 had made his telephone number 'ex-directory'; but it was apparently still the same number that he had previously used, when he was working in the depot and which, at that time, was not ex-directory.
53. .47 The claimant commenced employment with Homefirst on or about 4 January 2002.

The claimant claimed, in evidence, that during his first week at Homefirst, on or about 11 and 17 January 2002, two taxis had arrived for him at his new place of employment, which he had not ordered. His former colleagues at the respondent would have had an opportunity to see the claimant drive in his Homefirst vehicle around the town and would have thus been aware of where he was working, following his resignation from the respondent. His diary/journal recorded that these taxis had arrived on the days set out above. His manager at Homefirst was said, in evidence, by the claimant to have been aware of these incidents involving the taxis, but he did not give any evidence to the Tribunal.

The Tribunal was not satisfied, on the evidence before it, that there was sufficient evidence, upon which it could rely, to link these taxis to the respondent, and in particular any person employed by it.

54. .48 The claimant continued to work for Homefirst until in or about May 2003. He had to stop driving duties, which depressed him further, in or around August 2002, as Doctor McFarland had advised against him driving due to the medication he had been prescribed. He remained off sick and was unfit for work, on foot of sick lines given by his doctor for depression, until in or about May 2003 when he left Homefirst.
55. .49 The Tribunal noted that, although the claimant had not been back to work with Homefirst from August 2002, in May 2003, he immediately began work with his wife in a dry cleaning business called Xpress Dry Cleaners in Ballymena. He was able to serve in the shop and assist generally and also to use his car for deliveries in connection with the business and for driving to and from work.

The Tribunal was satisfied, on the documents produced to it, that the tax authorities had accepted the claimant was, for tax purposes, an employee of his wife in the above business, from when he started in or about May 2003.

However, prior to starting work in May 2003, the Tribunal came to the conclusion that the claimant, at a time when he was unable to return to work with Homefirst and was complaining of continuing serious depression, played a significant and demanding role in the setting up of the business with his wife in late 2002/early 2003. The Tribunal found this was not consistent with his evidence of such continuing depression and his inability to work. If he was as bad, as he suggested, the Tribunal does not accept he could have played such a role. It was also to be noted that he was obtaining statutory benefits at this time. The claimant did not inform his doctors of the work he was doing in connection with the dry cleaning business in the period late 2002/early 2003; despite its relevance, in the Tribunal's view, to his ongoing condition.

The claimant contended in evidence that at all times he was merely an employee of his wife, who was the owner of the business. Subsequently, for tax purposes, the Tribunal is satisfied that that technically was the position, as set out in the relevant tax authority documents. However, the Tribunal noted that the claimant had taken part, in the period late 2002/early 2003, in negotiations to obtain financial support from the local bank and he had done so on the basis that he held himself out as the owner of the business. The Tribunal noted that, in doing so, the claimant had clearly been prepared to tell untruths, in order to achieve the necessary finance to enable the business to be set up.

Further the claimant, rather than his wife, had been instrumental in this period in obtaining and negotiating for expensive equipment for use in the new premises. Again, such activity did not suggest to the Tribunal the claimant was so unwell at this time; and that he was playing a much greater role, in the circumstances, than merely a prospective employee.

In this context, a local newspaper cutting for January 2003 was produced in evidence to the Tribunal which referred to the opening of the new business and referring to the claimant as the proprietor of the business as well as his wife. It was an advertising feature and the claimant accepted that he had made the arrangements for obtaining this feature and had given the interview, the subject matter of the feature, in which he had been referred to as an owner. He had also posed for the photograph which was included in the feature. In the opinion of the Tribunal, it clearly gave the impression that he was a co-owner - which impression could only have been given by the claimant. Again this did not suggest a person who was so unwell and depressed. It also showed his close involvement with the new business and in which he had clearly decided at that time to play a significant role.

In conclusion, the Tribunal was satisfied that throughout this period, when he was off sick from work from in or about August 2002, he was in fact playing an active role in the setting up of the business and also in connection with its opening in or about January 2003.

The Tribunal was further satisfied that the claimant had decided from late 2002 that he wished to work with his wife in the new business, in which he was clearly financially and otherwise involved, rather than continuing to work for Homefirst.

56. .50 The respondent also produced in evidence a transcript of a tape of a recording of a telephone message which had been, in error, left on Mr Neilly's answering machine on or about 29 March 2001. The call, which the claimant accepted he had made, left a message, in essence, that ironing belonging to the person, who should have received the message, was now ready to be delivered. Mr Neilly had sent this tape to the respondent. He, by this time, had been interviewed by the investigation team and knew that he had been the subject of investigation for claims made against him by the claimant. He was also fully aware that the claimant was at that time off work sick and would be in receipt of sick pay from the respondent. Ms Grant received the tape from Mr Neilly. However, although the tape clearly suggested the claimant was doing some work at this time, Ms Grant decided not to take further action given the claimant's illness at that time. The tape had not been previously discovered until after the commencement of the hearing of these proceedings. The Tribunal was satisfied it was a relevant document and should have been discovered earlier, since the respondent was fully aware, prior to the hearing, that at the time of the call the claimant was off sick and this tape was therefore relevant to that issue. However, it decided that it should be allowed to be admitted in evidence, as its contents were clearly relevant to issues in this matter. The claimant did not dispute he had made such a call, albeit in error, and that, on occasion, he had assisted his wife in her then home ironing business, - doing the odd delivery for her in the area, albeit at that time he was off sick from the respondent. Whilst the Tribunal accepted that this was done on an occasional basis, and only involved a limited amount of driving, it again suggested to the Tribunal the claimant was not feeling as bad as he was suggesting to his medical advisers at that time or indeed to Mr Telford/Ms Grant at their meeting on 25 April 2001. However, the Tribunal was satisfied that this work which the claimant did for his wife did not compare with the work he subsequently carried out in relation to the setting up of the new business, which was on a very different and larger scale.
57. .51 The Tribunal was satisfied that, at all material times, the respondent had an equal opportunity policy which contained relevant provisions in relation to, inter alia, unlawful discrimination of any kind, sectarian harassment and/or victimisation. In addition, the respondent was a signatory to the joint declaration of protection dated 23 November 1993 with the trade unions and the CBI which, inter alia, stated:-

"(3) [signatories] to the document jointly condemn intimidation or harassment by word or actions, commit themselves to take all reasonable steps to secure the safety of employees from intimidation or harassment in the workplace by persons of other religious beliefs or political opinion. Such intimidation or harassment should be regarded as an offence of gross misconduct which may warrant dismissal.

(4) The company declares that these premises shall be a neutral working environment. It therefore prohibits the display of flags, emblems, posters, graffiti or the circulation of any material or deliberate articulation of slogans or songs which are likely to give offence or cause apprehension to a particular group of employees".

58. .52 The Tribunal also noted that, in or about October 1997 the respondent distributed, by post, to each employee its general harassment policy. It was satisfied that the claimant had received it at that time.

The Tribunal accepts that the respondent has a number of harassment advisers and that a list of their names and contact numbers are put up on the company's various notice boards in the form of a poster setting out that the advisers role is to:-

"Meet with employee in private

Listen to the circumstances

Provide information on personal rights under harassment policies

Provide information on the options available to resolve the problems".

The Harassment advisers role is specifically referred to in the said harassment policy.

In view of the said reference in the policy document the Tribunal is prepared to accept that such a poster had been put up on a notice board in the depot for some time after the policy was distributed in 1997. However it was not convinced that it was there at the time when the claimant made his complaint to the company in or about November 2000/January 2001. The Tribunal found it most surprising that no mention of the advisers and their role was made to the claimant at any of the meetings with the claimant. Indeed, the poster was only discovered to the claimant's advisers at the outset of the proceedings. It clearly was a relevant document and the Tribunal found the failure to discover the document, until this late stage, demonstrated the lack of attention and importance attached to the poster and ensuring that the workforce knew about the advisers role. In the Tribunal's view, the failure to discover the poster until the outset of the proceedings was not explained by the suggestion of the respondent's representatives that it did not think it would be an issue, in view of the claimant's stated awareness of the policy at the initial meeting in January 2001. The poster, and its existence, was different to the policy document and its existence.

59. .53 The Tribunal was not satisfied that Mr Wylie had ever received specific sectarian harassment training, albeit he had received sexual harassment training in or about 1994. In addition, it was not satisfied that there had ever been specific training given to the workforce in relation to the general harassment policy, following its issue in 1997. The Tribunal is satisfied that the drivers in the Ballymena Depot received training in harassment at various drivers days, which were part of a rolling ongoing programme across the workforce. The Tribunal was not clear the extent of the training on harassment issues, in particular sectarian harassment, as it appeared that other matters would also have been discussed during the course of the drivers days. Certainly, harassment would have formed part of such a day. The shunters/ cleaners such as Mr Neilly and the claimant were given harassment training in or about 1996. Having regard to the computer print outs produced in evidence to the Tribunal relating to harassment training given to the workforce, it appeared that most, if not all staff who were employed at the Ballymena Depot had received training in or about 1996; but not subsequently. Despite the importance and relevance of such computer records to these issues, these records were not produced by the respondent until during the course of these proceedings. Given the respondent's reliance on the defence it had taken the reasonable practicable steps to prevent discrimination the Tribunal considered such records should have been discovered in the course of the informal discovery between the parties. The Tribunal was satisfied Mr Telford/Ms Grant and Mr McGreevy were fully aware of the company's policies and procedures in relation to these matters. Ms Grant and Mr McGreevy had been involved in connection with the drafting and implementation of the said policies and procedures. The Tribunal was also satisfied that both Ms Grant and Mr McGreevy had attended a number of courses over the years where training in such issues would have been a component part. Mr Telford appeared to have only attended a specific course in May 2000, relevant to such issues, according to the respondent's records.
60. .54 The general harassment policy of the respondent, introduced in October 1997, set out, inter alia, that the respondent was:-

"committed to creating a harmonious working environment in which all employees have respect for the human integrity and dignity of our customers and of one another in order that apprehension is not felt because of religious or political beliefs …"

Further, it defines harassment "as any verbal or physical abuse, derogatory statements, displays of emblems or discriminatory remarks made by one or more persons in the work environment or in the course of work which are any of the following:-

unwanted and non-reciprocated

causes humiliation, offence, alarm or distress

interferes with job performance or creates an unpleasant working environment

trivialises people as individuals or as a group and emphasises their … religious belief, political opinions … over their role as workers.

Forms of harassment are set out and are stated to include by way of example:-

verbal harassment through jokes, offensive language, gossip and slander, sectarian songs etc

visual displays of posters, graffiti, obscene gestures, flags, bunting and emblems

isolation and non-cooperation at work, exclusion from social activities.

61. .55 Prior to November 2000, the claimant had not made any complaint to his General Practitioner of depression or indeed of any problems at work. Whilst there were episodes of epi-gastric pain in or about 1997/98, for which the claimant had been given normal standard medication for the complaint, there was nothing, at the relevant time to directly link these symptoms to any of the events, the subject matter of these proceedings. It was also to be noted that these symptoms occurred in an approximate twelve month period in 1997/98. The Tribunal was not satisfied on the evidence that this episode of epi-gastric pain could be linked to the subsequent depression complained of by the claimant.

Doctor Purce, his General Practitioner, made no record of the claimant's complaint of alopecia; she accepted he may have mentioned to her at the time but she had not considered it a major element and would have merely assured him that it would grow back. She also made no entry relating to weight loss or indeed of feeling it necessary to carry out any weight check, as part of her examination; though she was apparently aware his face was thinner following his complaint of depression from November 2000. Mr Corrigan, in or about November 2000, noted a bald patch on his head; and it was referred to by Dr McFarland to whom the claimant was referred, as seen later, in her reports. The Tribunal was satisfied there was for a period, until in or about 2002, some hair loss and that the claimant also suffered some weight loss, linked to his depression. In the file note, dated 29 March 2001, following the investigations, there was reference to alopecia.

The GP notes recorded from in or about November 2000 entries of attendance at his General Practitioner during the period, and in particular, in early 2001, during which time his General Practitioner had prescribed anti-depressant medication, but to which the claimant had not responded. Doctor Purce referred the claimant to Doctor E McFarland, Consultant Psychiatrist, in or about June 2001 as the claimant was, in her opinion very depressed, withdrawn and had developed social phobia. The claimant saw Doctor McFarland on 5 October 2001.

Doctor McFarland, in light of what she was told by the claimant about what had happened to him in his work situation and the symptoms found by her initially concluded after this first attendance on 5 October 2001 that the claimant "was suffering from an adjustment reaction with pronounced depressive and anxiety features precipitated by harassment at work which she presumed was on the basis of religion.

She increased his anti-depressant medication and subsequently the claimant was seen by Doctor McFarland and/or members of her staff on a regular basis with ongoing symptoms and with increased levels of medication. She confirmed that she had had to advise him not to drive, when he was with Homefirst in or about February 2002, due to the level of medication he was taking at that time. She set out in her report dated 23 July 2003, her summary and psychiatric opinion:-

"Mr Duffy initially presented in 2001 with loss of confidence, disturbed sleep pattern and thoughts of killing himself, allegedly following five years of severe harassment while employed at Ulsterbus. There is no family history or personal history of psychiatric illness. Physically he had developed patches of alopecia in his scalp and his mental state was characterised by avoidance of eye contact, irritability, depressed mood, loss of motivation, lack of interest, loss of libido, loss of confidence, social withdrawal, initial insomnia, early morning wakening, loss of appetite with significant weight loss, poor concentration, forgetfulness, intolerance of noise, and a range of anxiety symptoms including palpitations, sweating, fearfulness. The diagnosis is an adjustment reaction with pronounced depressive and anxiety features as a consequence of the alleged harassment at work and his perception that he could not talk to his superiors and was branded a liar.

…

His mental state remains fragile and he is easily distressed by events relating to the court case or by taunts from ex-colleagues at Ulsterbus. One can only hope that once the court case is over there may be some reduction in his symptoms. Given the chronicity of his illness it is unlikely his symptoms will fully resolve. I would anticipate there will be many years before his self confidence returns".

This report was admitted in evidence without formal proof.

Doctor Mangan, Consultant Psychiatrist, who had initially seen the claimant on 8 June 2001, for the purposes of a medical/legal report on instruction from the claimant's advisers, gave evidence to the Tribunal. In his initial report he set out in some detail the claimant's history of harassment which the claimant said had taken place at the time of his work with the respondent. Doctor Mangan concluded that the claimant was suffering from a major depressive episode. In his opinion, "his depressive illness was characterised by significant sleep disturbance, including initial insomnia and a broken sleep pattern, depressed mood including thoughts of life not worth living, loss of confidence, reduced interest in his normal activities, irritability generalised worry and anxiety symptoms and impaired concentration".

In a further report dated 28 February 2003, he remained satisfied with his diagnosis of major depressive episode; he believed the claimant continued to have significant problems with depression; albeit he noted some improvement at that time. He concluded that -

"Bearing in mind the protracted course of his depressive illness he is likely to require maintenance to anti-depressant medication for some considerable time. In the next few years, he is vulnerable to developing further problems with depression in times of stress".

Doctor B Fleming, Consultant Psychiatrist, who initially saw the claimant on 27 October 2003 for the purpose of a medical/legal report, on instructions of the respondent's advisers, did not consider the claimant was at that time clinically depressed. He accepted the claimant had a very high level of persisting complaint dating back to 1995 but found it difficult to see how the claimant had functioned in his job with the high level of psychiatric complaint he reported. Doctor Fleming would have expected that, given this high level of complaint, the claimant would have consulted with his General Practitioner in relation to these matters during this period. As is common case in this matter the claimant did not do so until in or about November 2000, when he first complained of depression. Doctor Fleming felt there was a high level of subjective complaint, which he did not consider was borne out by the GP records, which he had seen, but also his work history with the respondent and subsequently with Homefirst.

In his subsequent report dated 14 January 2004 he referred, inter alia, to Doctor Mangan's report and his conclusion that the claimant was suffering from a major depressive illness and also Doctor McFarland's conclusion of an adjustment reaction. He pointed out that these were two very distinct entities.

"Depressive episodes are either mild, moderate or severe and are conditions of pervasive lowered mood, which is usually unresponsive to circumstances. Adjustment reactions on the other hand are states of subjective emotional disturbance, which are a direct consequence of stressful events, and are generally accepted as being at the milder end of the spectrum of severity of psychiatric disorders. They are by definition time limited".

He concluded as follows:-

"The over-riding impression from these records is this gentleman did have an adjustment reaction to the stress of what he perceived to be harassment at his work. The difficulty is in dating the onset of this. Mr Duffy told me that his symptoms began shortly after he started working with Ulsterbus. It is difficult to explain why he wouldn't have consulted with his General Practitioner before November 2000, given that he reported to me only a modest improvement over the course of the intervening years. I think Doctor MacFarland's diagnosis when she saw him in October 2001 is reasonable. This gentleman appears to function fairly well, at least from the period when he found employment with the Homefirst Trust in early 2002. Records would suggest that his low mood ran a fluctuating course at times, depending on whatever stress he was experiencing. This is typical of adjustment reactions. I would certainly be very reluctant to diagnosis him with a major depressive illness, given the information contained within the records supplied to me".

A major issue for the Tribunal therefore to resolve was the issue whether the claimant was suffering from a major depressive illness, as concluded by Doctor Mangan or from an adjustment reaction with pronounced depressive and anxiety features, as concluded by Doctor McFarland and also by Doctor Fleming, albeit with some reservations.

It was clear to the Tribunal that, whilst there was a difference between these two entities from a medical point of view, the distinction did not radically alter the medication and treatment given to the claimant. Of course, it has to be remembered that all the medical experts who provided reports/gave evidence to the Tribunal were relying, on the history which was given by the claimant of what he alleged had occurred during the period of his employment with the respondent and what they were told and/or observed of the symptoms of the claimant; though it is correct to note that Doctor Fleming raised issues of exaggeration on the part of the claimant in relation to his symptoms and in particular of body language at the time of his examination.

There was considerable evidence given to the Tribunal of the various criteria used by psychiatrists on how it can be determined that a depressive illness can be classified as a major depressive episode. The Tribunal came to the conclusion that it preferred the diagnosis of Doctor McFarland of an adjustment reaction with a pronounced depressive and anxiety features. The Tribunal noted that Doctor Fleming did not disagree, in essence, with Doctor McFarland, that the claimant had an adjustment reaction with depressive features. In coming to this conclusion, the Tribunal was very conscious that Doctor McFarland's diagnosis was based on having had the opportunity to observe the claimant on many occasions and not merely for the purposes of medical/legal reports; and, in such circumstances, it felt she had a better opportunity to observe and come to a conclusion which included whether the necessary number of criteria which required to be satisfied for the purposes of making a diagnosis of a future depressive episode had been satisfied.

In the Tribunal's view much depended on the impression of the history given by the claimant but also the conclusions reached, on the basis of the records compiled by the General Practitioner and Dr McFarland. In such circumstances the Tribunal felt Dr McFarland was in a better position to come to an appropriate diagnosis. The Tribunal accepted therefore Dr McFarland's diagnosis of such an adjustment reaction, which was clearly linked to the harassment complained of by him. The Tribunal also accepted that, despite the absence of complaint and symptoms prior to November 2000, that such a link was established.

Dr Fleming did not dispute the symptoms, as found by Dr McFarland, albeit he had concerns about exaggeration in relation to the period after the claimant had left the respondent. The Tribunal shared those concerns. In this context the Tribunal noted that, in or about May 2001, when the claimant attended his interview with Homefirst, he was clearly much better than he was telling his doctors. Indeed he did not inform them of the interview, which the Tribunal considers would have been very relevant for them to have known. In addition his work in the setting up of the new dry cleaning business, again in the Tribunal's opinion, suggested a person who was not suffering as much as he stated and was clearly improving; albeit he was still on anti-depressant medication, taking two types of anti-depressant drugs.

The Tribunal felt that given the claimant was now no longer working for the respondent since in or about 2001 and was now, by his own choice, working in the dry cleaning business with his wife there would be ongoing improvement in his condition - as further distance was put between him and his previous work with the respondent. It was apparent that even when working for Homefirst there was an improvement in his condition. However, the Tribunal accepted that he would have to remain on anti-depressant medication for some time.

62. .56 It was apparent to the Tribunal, throughout the course of the these proceedings, that in relation to many of the claims made by the claimant that there was a complete conflict of evidence between what the claimant was alleging and the respondent and its witnesses were stating in response. Indeed, this conflict was never more apparent than when consideration was given to what was said by the claimant and the respondent's employees during the course of the investigation, carried out following the initial complaint by the claimant to the company doctor in November 2000.

In essence, the claimant was at all times claiming that there was a series of acts of sectarian harassment taking place in the depot against him at various times over the period of his employment, which at all times was denied by the respondent.

63. .57 Mr Bobby Colvin, a Protestant, worked at all material times in the garage at the depot as a diesel fitter. He was a member of the Orange Order in 1992 but left in or about 1997. At all material times he was a member of the Masonic Order.

Mr Darren Crawford, a Protestant, also worked in the garage as a painter and at all material times was a member of the Orange Order; but at no time was a member of the Masonic Order. He was also a member of a 'marching band', who would have paraded, inter alia, for Orange Order events including, in particular, the summer marching season in July. He owned his own Orange Order Collar/sash.

Mr Stephen Neilly, was initially employed, like the claimant, as a shunter/cleaner from in or about 1994; and, in or about 1999, became a driver. At all material times Mr Neilly was a member of the Orange Order; and a member of the Masonic Order.

64. .58 Mr Colvin, Mr Crawford and Mr Neilly, displayed Ulster/Union Jack flags outside their homes each year for a period around the 12^th July. All lived in houses on estates which would have been considered to be predominantly Protestant. The claimant in or about 1996/1997, moved into a house on the Galgorm Estate, Ballymena, which the Tribunal is satisfied would have been recognised as a predominantly Protestant Estate and where many residents would also have displayed such flags during the July period.
65. .59 The Tribunal was satisfied that, during the period of the claimant's employment with the respondent, there were two incidents when Ulster/Union Jack flags were displayed at the depot. There was also a further incident of flag flying, not at the depot but on adjoining property, the responsibility of the Northern Ireland Railway Company which was also in the Translink Group. This latter incident was the responsibility of a different company; albeit a company within the same group and the Tribunal did not consider this incident, in the circumstances was relevant to these proceedings. The reference to these incidents was made by Mr Wylie, not the claimant.

The Tribunal noted that the claimant had made a generalised allegation relating to flags and emblems in the workplace in his "pleadings"; though he had never made any specific complaint at any time about these specific incidents referred to above and did not appear to be personally aware of them, prior to the hearing of this matter. The Tribunal considered the reference in the 'pleadings' to flags and emblems in the workplace was a reference to the matters alleged in relation to what happened in the fuel hut and the Darren Crawford incident.

In relation to the first incident, the Tribunal was satisfied that a flag was displayed on the garage overnight one 12^th July. The date was uncertain but it was probably in or about 1996, at a time of heightened tension, due to Drumcree, in the Ballymena area. There was no evidence who did it nor a proper investigation to find out who carried it out; though, given its location, the Tribunal believed it was probably an employee working in the depot and probably an employee working in the garage. The majority of the Tribunal believed that this incident was probably what Mr Wylie was referring to, when he met Mr Telford/Ms Grant on 8 February 2001. It was within 24 hours or thereabouts, removed by Mr Telford and Mr Fiddament, the relevant senior line managers with responsibility for the depot. The Tribunal is not satisfied, on the evidence, that any formal steps were taken to give any formal warnings to staff and/or reminders about the respondent's flag and emblems policy about such displays. If anything was done it was done very informally by the manager of the garage and then only to garage staff. Mr McGreevy, as the engineering executive with particular responsibility for garage staff, was aware of this incident. He gave an instruction to Mr Fiddament to remind garage staff of the flags and emblems policy; though he does not appear to have followed his instruction up or the manner in which his instruction had been carried out. The following year, at about the same time, a further flag was flown on a pole in the depot at the back of the bus wash, which was in the depot but at or about the border with the adjoining railway property. This was again removed by Mr Telford, who was accompanied by Mr Wylie, within a similar time scale to the previous incident. Again, no investigation was carried out or any further action taken. The depot was very open and covered an area to which the public could easily gain access. The Tribunal accepted it was possible, given its location, that this display was not carried out by an employee of the depot but by a third party. The Tribunal noted that there was no evidence of any further displays of such flags at the depot. Both displays would have been visible to the staff working in the depot, prior to the removal. Such displays were contrary to the respondent's harassment policy and joint declaration of protection.

66. .60 The Tribunal was not satisfied that at any time material to these proceedings that red/white/blue bunting, or a calendar with Mr Paisley's face on it was in the fuel hut, or that notices of band parades were displayed in the hut. Other than the claimant no other person who gave evidence or who was interviewed supported the claimant's claims.

At all times, the Tribunal noted that this absence of corroboration was a constant feature, relating to many of the claimant's claims. The Tribunal was very conscious that the absence of such supporting evidence is not determinative of the matter and, in particular, a claim of unlawful discrimination. The Tribunal therefore had, in determining whether any such matter, relevant to these proceedings, occurred or not had to consider very carefully the evidence of those who were not supporting the claimant's version of events, their background and how they came to be involved in this matter, including what they had said during the course of the investigation. In coming to its conclusions, the Tribunal did not disregard the fact that in relation to obtaining employment and also finance from the bank, in relation to the dry cleaning business, he had been found to have told some untruths. However, equally the Tribunal was very aware that he claimant had been found by Mr Telford/Ms Grant initially and subsequently by the investigation team to be believable in relation to these claims - albeit, in their view, evidence had not been produced to substantiate the claims. The Tribunal was also very aware that at all times during the claimant's employment there was a significant minority of Roman Catholics employed in the depot.

Turning to the specific issue of the fuel hut, the Tribunal was particularly aware that none of the claimant's co-religionists were prepared to give any support to the claimant on this issue, including Ms Conway, a cleaner, or Inspector Corrigan. Ms Conway was a person whom the claimant had informed the investigation team would support his claim and was clearly a person who liked the claimant. She was not prepared to support the claimant's allegations. These were matters, which if they occurred, would clearly stick in a person's mind and not be forgotten.

In the circumstances, the Tribunal was not satisfied that there were such displays at any time in the fuel hut.

67. .61 The Tribunal was satisfied that it was the practice of the claimant not to go into the pay in room, when it was crowded and that he preferred to go in alone at a later time. This had clearly been noted by others, not least Inspector Glendinning and Mr Wylie but also by Mr Wallace McWilliams, who worked as a Clerk, in the pay in room on the administration side.

Clearly the central issue in relation to the claimant's claim relating to the pay in room was whether comments were made about the various loyalist paramilitary groupings, such as the LVF/UVF. If such comments were made, then clearly, in the Tribunal's view, these would go beyond what might be thought of as normal acceptable banter and would undoubtedly have been unacceptable to the claimant. On the other hand, the Tribunal could accept that, in a place such as the pay in room, there could often be what might be described as genuine normal banter as staff went on and off duty. It would be unrealistic to think otherwise. Such banter would not normally be something which a person would take offence about. Clearly, what the claimant was alleging went beyond what might be thought of as normal acceptable banter.

The Tribunal is satisfied that there was talk in the pay in room relating to football and, on occasion, this could have related to scores/results relating to teams such as Rangers/Celtic/Linfield and also leading premier league sides in England, who all had supporters amongst the workforce. However, no-one was prepared to give any support to the claimant's claims that what took place in the pay in room was of the particular sectarian nature referred to above. The claimant's co-religionists gave him no support; nor the person, Mark McCormick, a Catholic driver, who supported Celtic and who had been identified by the claimant, in the course of the investigation, as the person who would corroborate what he was saying. The Tribunal found this failure particularly relevant and significant in the circumstances.

The Tribunal noted that, there was never any attempt to ascertain why the claimant's practice was not to go into the pay in room. He clearly did his job well and there was no suggestion his practice was wrong per se or causing difficulties in

his work. Thus, the Tribunal is not convinced, without more, that such further enquiries were required to be made.

Inspector Glendinning, co-religionist, with whom the claimant appeared to have a reasonable relationship had, on occasion, enquired whether the claimant was okay; and he had given no hint of any difficulty. He made no complaint to anyone else about this, including any of his co-religionists.

The Tribunal also noted that, whilst the claimant had made the allegation in relation to the sectarian/political type comments in the pay in room from the outset, it was not until June 2001, in the said replies to particulars, when the investigation had taken place and the findings made known, that the claimant made the specific complaint that Mr Wylie, the Depot Manager, had been present on one occasion when such remarks had been made and had been smiling during the conversation - with a clear indication he heard the said remarks. This event was supposed to have taken place in August 2000; but was not mentioned until some 10 months later. In particular it was not mentioned in November 2000/early 2001 when it might have been expected to be freshest in the claimant's mind. In addition, the claimant, although invited to do so by Ms Grant at the initial meeting on 29 January 2001 with the claimant, did not refer to this incident and indeed stated (see previously) "there was nothing specific in recent months".

In the circumstances, the Tribunal was not prepared to accept such comments were made in the pay in room as claimed by the claimant.

68. .62 The Tribunal was satisfied that Mr Neilly had reversed the bus he was driving into a car driven by the claimant and caused damage to it in September 1995. The Tribunal believes that immediately after the accident Mr Neilly did not check whether the claimant was injured, did not apologise to the claimant but admitted responsibility to Mr Wylie. The failure to apologise, in the Tribunal's opinion, could be explained by the strict instruction given to staff not to admit responsibility to any third party for any accident. Mr Neilly was, in the opinion of the Tribunal, at fault for the accident and this was confirmed when the respondent ultimately settled the claimant's claim in full. The Tribunal has no doubt the respondent initially sought to try to settle this matter on a 50/50 basis; but that when this was challenged by the claimant it was then decided to accept full responsibility for the actions of Mr Neilly in reversing the bus into the claimant's car. The Tribunal is satisfied that any decision to do so, for what was a relatively small amount, would have been taken in Belfast by the respondent's insurance department, who were not in any way involved in the events or persons the subject matter of these proceedings. The Tribunal considers that the claimant's claim that this was only done, after he had suggested Mr Neilly was in the Masonic Order, was not correct. The majority of the Tribunal found it most unusual that Mr Neilly, before admitting responsibility to Mr Wylie, did not check whether the claimant was injured or have any conversation with the claimant at the time. In the view of the majority of the Tribunal, this was not the action of a person involved in an accident, involving what were two colleagues at work. They therefore concluded this was not an accident, but a deliberate action on the party of Mr Neilly, as claimed by the claimant. The majority of the Tribunal were of the opinion that when in the originating application and questionnaire he stated "had my car hit at work" this implied a deliberate act.

At no time until the claimant gave evidence did the claimant expressly state that the crash was a "deliberate" action on Mr Neilly's part. The implication, arising from the failure to use such terminology about this matter was, in the view of the minority member of the Tribunal, significant. To damage a bus he was driving, and certainly if done deliberately, had also the potential to lead to Mr Neilly facing a disciplinary charge; or, in the event of further accidents, at a later time. The minority member of the Tribunal did not consider Mr Neilly would have been prepared to so expose himself to any such risk. In the absence of an express statement from the outset that the actions of Mr Neilly were deliberate, and given that accidents can happen and did happen in the depot, he concluded this was merely an unfortunate accident.

69. .63 The Tribunal was satisfied there was a leaflet campaign around 1998, at the time of Drumcree, calling for a boycott of Catholic shops in Ballymena. The Tribunal is of the view that such leaflets were widely distributed round the town of Ballymena. However, it does not believe there was any evidence to suggest, as the claimant did, that they were specifically distributed in the depot itself as part of the above campaign. The Tribunal could accept, on the evidence before it, there was a recollection by some employees of such a campaign in the town and that such a leaflet could, on occasion, have found itself in the depot - having been left on a bus or left there by a member of the public who used the depot daily to board or alight from buses. The Tribunal could equally accept the claimant, in such circumstances, could have found such a leaflet. He properly handed the leaflet he found to Mr Simpson. In the absence of such a campaign, the Tribunal was not surprised Mr Simpson merely crumpled the leaflet and put it in the bin and took no further action. Such action was, in the circumstances, entirely appropriate.
70. .64 In relation to the allegation that Darren Crawford had, within a short period of the claimant starting in the depot, waved a Union Jack in the claimant's face and shouted, "Up the fucking Pope you fucker", when also wearing an Orange Collar/sash; the Tribunal noted that once again this was an allegation where there was complete conflict in the evidence. Mr Crawford, as seen above, was a member of the Orange Order and did own his own Orange Collar/sash. In addition, the Tribunal found Mr Crawford a very unsatisfactory witness. He purported in evidence to have no knowledge of Drumcree and the events surrounding it, which the Tribunal found less than credible; and he was not even prepared to accept that there was any football banter, of any kind, in the pay in room, which the Tribunal has already accepted, as seen above, did take place. The unsatisfactory nature of his evidence on the above issues clearly gave the Tribunal considerable concern about his denial that he had taken the actions claimed by the claimant. No-one else supported the claimant though he suggested that this was an event which would have been seen by many in the yard.

The Tribunal, in light of the most unsatisfactory nature of Mr Crawford's evidence, came to the conclusion that it could not accept Mr Crawford's denial and that Mr Crawford did as the claimant alleged. There was no suggestion of any other subsequent similar action by Mr Crawford.

71. .65 In the replies to further particulars in June 2001, though not earlier, the claimant made the claim that there was wearing of Rangers' scarves by other employees. Again the Tribunal was surprised that, if this was true, the claimant had not made reference to this previously. The Tribunal did accept, as indicated by Mr Arrell a fellow shunter/cleaner with the claimant and who appeared to have a reasonable relationship with the claimant, that, on occasion, football scarves, such as Rangers/Celtic scarves would be left by customers on a bus and find their way into the depot as lost property. Thus, on occasion, football scarves could be left lying around in the depot. But the Tribunal was not satisfied that there was the wearing of such football scarves by employees around the depot. This would have been in clear contravention of the flags and emblems policy of the respondent; and the Tribunal has little doubt that such a blatant breach, which would have been clearly visible to all users of the depot, would not have been permitted by the Depot Manager, Mr Wylie, or any of the Inspectors. Again there was no support for this claim by any of the claimant's fellow employees at the depot; and, in particular his co-religionists.
72. .66 In relation to the claimant's claim that Mr Colvin and Mr Neilly made remarks to him about the Masonic Order and their ability to get away with things because of such membership, which was denied by each of them, the Tribunal, as seen above, was satisfied that Mr Colvin and Mr Neilly were at all material times members of the said Order. Mr Wylie was not a member and there was no evidence to suggest he ever contemplated joining the Masons. Mr Telford also was never a member.

There was a complete conflict of evidence, which it was difficult for the Tribunal to resolve. The claimant clearly got some details wrong, as seen above; but yet it seemed unlikely the claimant could have come to know the membership of Mr Colvin and Mr Neilly of the said Order, unless they told him.

On balance, the Tribunal concluded both Mr Colvin and Mr Neilly must have made, in the depot, remarks about their membership of the Order to the claimant, and that their membership allowed them to get away with things.

73. .67 The claimant made a number of claims relating to remarks alleged to have been made by Mr Neilly in or about 1996/1997 in the depot including, "Don't buy a house there you will get burned out"/"Collect the milk bottles"/"Buy a flag and put it out"/"You are one of us now". There was no doubt that, when these statements were alleged to have been made, there were sectarian tensions in the Ballymena area arising out of events at Drumcree. Mr Neilly denied that he had ever made such remarks. He attempted, in evidence, to down play any knowledge he had of such tensions in the area, which the Tribunal found less than credible as a member of the Orange Order.

Ms Grant, during the course of the investigation, gave Mr Neilly the opportunity to admit that such remarks had been made by him at this time of tension in the area by way of friendly advice to a Roman Catholic moving into a housing area which was predominantly Protestant and where it would have been customary to display flags on the houses in the area at the time of the July marching season. He declined the opportunity and continued his denial.

However, the Tribunal found Mr Neilly's denial unconvincing and given the tensions in the area at the time and difficulties for a Roman Catholic moving into such an area at such times, which Mr Neilly in the Tribunal's view must have known about, it concluded that such remarks had been made by Mr Neilly.

74. .68 The claimant, from the outset of the proceedings, maintained that Mr Colvin had said to him, "I wish the fucking troubles would start again as you will be the first Fenian that will be shot". It seems that this was alleged to have been said in the depot in the summer of 1998; and again, at a time of sectarian tension in the Ballymena area arising out of the events at Drumcree.

There was again a conflict of evidence. Mr Colvin denied that he had ever made such a remark and there was no one who gave evidence in support of the claimant's claim. Again no complaint was made by the claimant to anyone that such a remark had been made. Clearly, if it was said, it was a particularly serious and offensive remark.

The investigation team were fully aware that it was Mr Colvin who was alleged to have made this remark. Indeed, it was Mr Dunlop, a relative of the claimant by marriage, who was said by the claimant to have been a witness. The claimant also said that he reported it to Mr Wylie who had, in essence, told him not to worry about it. Mr Wylie had no recollection of receiving such a complaint, which he said he would have noted if it had been made. Mr Dunlop equally gave no support of having heard the remark made by Mr Colvin. The Tribunal was particularly concerned that, in the course of the investigation, the specific terms of what Mr Colvin's was alleged to have said were not directly put to Mr Dunlop or more particularly Mr Colvin; albeit this was a very specific statement and the identity of the person saying it was known.

The Tribunal, not without some hesitation, has come to the conclusion that this remark was made by Mr Colvin. It is such a specific complaint, it concluded, it was not the sort of remark to have been made up. From the outset, the claimant had said such a statement had been made to him.

Whilst the Tribunal has no doubt that if the specific wording had been put to Mr Dunlop or indeed Mr Colvin the same answer would still have been given - the Tribunal would, at least, have had these responses in their full context in trying to assess the said conflict of evidence between the parties. A fundamental part of any investigation, in the Tribunal's view, was always to put to the person, alleged to have said the offending remark or heard it, the precise remark.

The Tribunal was not impressed by McGreevy's assertion that, to have set out the full terms of the comment to Mr Colvin and Mr Dunlop, would have increased problems for the claimant on any return to work. The staff at the depot were fully aware that an investigation was taking place and the nature of same. It would have been preferable, in the Tribunal's opinion, albeit the result of the interview might have been the same, to have ensured that any gossip, which Mr McGreevy feared, would at least be accurate. The consequences for the claimant of any return to work were matters the respondent was always going to have to deal with.

75. .69 The Tribunal was not satisfied, on the basis of the financial records placed before it, that it had been established that, at any time material to this claim, the claimant had not been given by Mr Simpson overtime in comparison to Mr Neilly. This was a claim, it has to be recalled, which had not initially been made by the claimant and then which he stated related to a period when he had obtained no (Tribunal's emphasis) overtime for a period. He was initially somewhat vague about which period was being relied upon. The Tribunal accepted the system for allocating overtime for shunters/cleaners was somewhat haphazard and depended largely on the availability of such work, which, in essence, was usually private hire work, and also the willingness of staff at any given time to do such work. The Tribunal in such circumstances, was not satisfied the figure ultimately claimed of £645, being the difference in earnings between the claimant and Mr Neilly at about 1998 was attributable to any refusal of Mr Simpson to allocate overtime to the claimant during this period. It did so, having regard to the above variables in the allocation system but also because Mr Simpson was not the only Inspector who allocated overtime, having regard to the rota system which they operated. Indeed, in particular, it is noteworthy that during this period the claimant had earned a considerable sum in addition to his basic pay on such overtime. In the circumstances, the Tribunal was not prepared to give credence to this claim by the claimant which, as set out above, had begun initially as a claim that he had been given no overtime, which was clearly not true.
76. .70 The claimant had also claimed, in his additional allegations set out in the replies to particulars that Mr Simpson had stopped the claimant, as a shunter/cleaner, unlike the other Protestant shunters/cleaners, Mr Arrell and Mr Neilly, from driving buses in the yard. Driving buses in the yard was a normal part of the duties of a shunter/ cleaner. It was a task which had to be carried out and the Tribunal could see no practical sense, not least for Mr Simpson, to stop the claimant carrying out such a duty. There was no evidence to support what the claimant was saying. The Tribunal had no doubt, if Mr Simpson had taken the action suggested, this would have been noticed by other staff, and in particular the other Inspectors on duty at the same time as Mr Simpson. The Tribunal could not accept that Mr Simpson took such action. This claim had not been referred to at the outset by the claimant. The Tribunal could see no good reason for not doing so and this was a relevant factor in the Tribunal's conclusion on this matter.

It was clear from the evidence of his co-Inspectors and also Mr Wylie, and from what the Tribunal could observe when Mr Simpson gave his evidence, that Mr Simpson clearly was a person with a difficult management style and it was the sort of style which came into conflict with many staff, including his fellow inspectors. In such circumstances, the Tribunal had no doubt that it was never Mr Simpson's practice to let staff away early on Christmas Eve and in the circumstances he would always have rejected the request of anyone to finish early, not just the claimant. The Tribunal could understand the claimant would have been anxious, as a family man to get home early on Christmas Eve. Indeed, the Tribunal believed that other Inspectors when on duty, on such a night, might have taken a different course of action if they had been asked by any member of staff, including the claimant. The Tribunal is prepared to accept that the claimant did ask Mr Simpson and was refused; but this was in accordance with his normal practice and style to everyone. The Tribunal was not satisfied that there was any evidence that Mr Simpson had picked on the claimant - though it did not ignore the possibility that the claimant, like others in the depot, had had their difficulties with Mr Simpson. There was no evidence to suggest that any difficulties the claimant had were any worse or different than those of other staff, including his fellow Inspectors.

77. .71 The Tribunal was satisfied that there was a dispute between Mr Wylie and the claimant over payments due to him in lieu for working over the Easter period in 2000. The claimant had not been paid the full amount which he was due. He subsequently confronted Mr Wylie about it, as Mr Wylie was about to leave the depot. There is no doubt, as Mr Wylie readily admitted, he swore at the claimant though he immediately apologised. In light of his admission, the Tribunal could understand why Mr McGreevy did not pursue this matter further and in the absence of any other evidence of a sectarian nature, such as emerged in evidence to the Tribunal, as set out later. The claimant reported this matter to his union representative and it appears that the money dispute was resolved. Again, the Tribunal notes that, although this matter had occurred in the period following Easter 2000, he made no reference to this claim until the replies to particulars in June 2001 almost twelve months later. Clearly, for Mr Wylie to swear at the claimant, who had raised a legitimate query, was unacceptable and bad management by him. Certainly, Mr Wylie admitted that he had not sworn at any other member of staff in the same way but the Tribunal was prepared to accept that the claimant had, in terms, caught him at a bad moment as he was rushing out from work; and that his swearing at the claimant had nothing to do with the claimant's religious belief.

The Tribunal also noted that, in the replies to particulars in June 2001 the claimant had referred to the above matter and the swearing by Mr Wylie. However, when giving his evidence, the claimant claimed that when he had raised the issue with Mr Wylie he had also asked him, "Is it because I am a Catholic?" This had never been suggested previously. Mr Wylie denied that this had ever been asked. Given its obvious importance to be included, where the claimant was making a claim of unlawful discrimination against Mr Wylie, the Tribunal came to the conclusion that this had never been said and it had been included by the claimant, in evidence, in order to give a specific sectarian slant on the events surrounding his confrontation with Mr Wylie on that day.

78. .72 The Tribunal is satisfied that, in the period of 1997/8, at various dates and times, the claimant was the victim of unordered deliveries to his house of stones, oil, Chinese meals and also the arrival, at his house, of unordered taxis; and, on one occasion, there was a delivery of a carry out to the depot when only a few fellow members of staff would have known he was working at that particular time. The Tribunal is satisfied that, unlike many other matters relied on by the claimant in these proceedings, the claimant did readily discuss with fellow employees what was happening and his obvious dissatisfaction. The fact of these deliveries was common knowledge in the depot, given what the claimant was saying and included the Depot Manager and the Inspectors. The Tribunal is also satisfied that, at the time of these deliveries, it was recognised by Mr Wylie that these deliveries had been carried out by an employee, albeit unidentified, working in the depot. The Tribunal noted that these deliveries stopped following the intervention of Mr Portis, when he accused Mr Neilly of involvement in the matter; albeit on the basis of what he had been told by the claimant about the responsibility of Mr Neilly for the deliveries. Mr Neilly at all times denied involvement. Mr Portis, faced with Mr Neilly's denial, apologised for accusing him. No further action was taken by Mr Wylie. Despite his knowledge and acceptance that what was taking place was carried out by an employee in the depot he took no action at the time. The Tribunal can understand that any investigation would have probably been unlikely to reveal any specific employee who was involved. However, the Tribunal could not understand why there was, in the circumstances, no attempt to take any action, such as giving a general warning, reminding the staff of the harassment policy - in circumstances where this had not been an isolated incident, had taken place over a period and was clearly a matter for concern to the claimant. It also has to be remembered that no other member of staff received such deliveries/visits from taxis not ordered. Mr McGreevy was told by Mr Wylie that the general impression was that it was probably someone at work who was carrying out the deliveries; but since he was not stating it as a fact but only a probability he did not probe the matter further. The Tribunal could understand that further probing was unlikely to have revealed the identity of any specific employee, in the absence of any direct evidence of complicity in the matter by an employee. However, the Tribunal would have expected some testing of the strength of his belief that someone in work was carrying the deliveries out. This was of particular relevance, when in the file report of the investigation team on 29 March 2001, it is concluded that "there was no indication there was anyone involved from [the claimant's] depot"; whereas there was just such an indication, albeit no such person was identified. Despite what Mr McGreevy had been told by Mr Wylie, he took no action to make it clear if there was any repeat of such activity, and any employee was found to have carried it out, disciplinary action would follow. Nor did he take the opportunity to remind the employees at the depot of the terms of the harassment policy of the respondent. Such actions were contrary to the terms of the harassment policy of the respondent.
79. .73 The Tribunal was satisfied that an incident involving the claimant's keys going missing in the fuel hut occurred in or about 1997 and the keys were found some three months later by Mr Simpson, at the back of the fuel hut. The claimant clearly had a reputation of losing things and it was not the only occasion when he had lost equipment. For example, he had lost a mobile phone in the snow and had been known to leave things behind. It seems that this was not the only occasion on which he had lost keys. Both Mr Wylie and Mr Simpson recognised that what had happened to the keys, and how they came to be found at the back of a hut by Mr Simpson at the bottom of a drain pipe, suggested the involvement of an employee. To find a set of keys in such a position did not suggest, in the Tribunal's view, that the set of keys had been absent-mindedly placed there by the claimant. The Tribunal accepted that the claimant was known, on occasion, to leave his keys at the open window of the fuel hut, which was clearly foolish; but that did not explain how the keys came to be found by the back of the hut in the above circumstances. The Tribunal is satisfied that this had occurred due to the deliberate action of an employee at the depot, against the claimant.

Neither Mr Wylie nor Mr Simpson commenced any investigation nor took any action to give any warning about the consequences of such action, albeit each recognised the potential involvement of a member of staff at the depot. There was no suggestion that any other employer's keys/equipment had suffered the same fate as the claimant's keys.

In reporting the keys missing, the claimant was clearly indicating his concern about the matter and his objection to what had happened. At almost the same time, a further set of missing keys belonging to the claimant turned up in an oil can used daily by staff, including the claimant. The Tribunal came to the conclusion this also was a deliberate action of an employee at the depot against the claimant.

80. .74 The Tribunal is satisfied the claimant went on a stand off parade with Mr Neilly to the Ormeau Road, Belfast, in the summer of 1999. Mr Neilly had no specific recollection of ever going on such a parade with the claimant. Indeed he said that up until September 2001, when interviewed about it, he had only ever been once to such a parade. In such circumstances the Tribunal found it surprising he did not remember whether or not the claimant was with him. But yet the Tribunal noted he was adamant in his denial of ever making such a remark. Maintaining his denial, the Tribunal noted he did not suggest he could have made such a remark but in jest or to lighten what could have been a tense situation. The Tribunal came to the conclusion that Mr Neilly probably did make the remark when a band member raised concerns about getting home - "They would get home safely by putting the claimant in front where he could wear his crucifix". The remark, which was very specific, was consistent with the scenario of a stand off parade on the Ormeau Road. In the Tribunal's view, it was not the sort of remark that would have been made up by the claimant.
81. .75 The Tribunal had no doubt that an incident in or about December 1999 occurred involving Mr McHendry. Having observed Mr McHendry giving evidence, the Tribunal is satisfied that he would have lost his temper when the claimant was in the wrong bus and was not prepared to leave it. The Tribunal did not find Mr McHendry an impressive witness who at all times was attempting to minimise his involvement in the matter and put all the blame on the claimant; whereas the Tribunal was satisfied both he and the claimant were involved. The Tribunal has no doubt that there was a serious altercation involving both men and that a set of keys hit the claimant's child on her jumper but not her face. However the Tribunal does not believe that the claimant was thrown to the ground as he had suggested. If he had been, the Tribunal is confident that Inspector Glendinning would have noticed some upset to the claimant's clothes, which he did not. The claimant's child, who was seated on the bus, had accompanied her father to work.

The crucial issue for the Tribunal to determine was, whether in addition to the serious altercation between the two men, Mr McHendry made the offending remarks, set out above. The Tribunal was satisfied, having observed Mr McHendry give evidence, he was quite capable of saying it; in particular where he had clearly lost his temper. He was an admitted supporter of the DUP and clearly not in favour of the appointment of Mr Maginness, as Education Minister. Again there was a conflict of evidence between the two men, with Mr McHendry adamant that he did not make any such remark. The claimant, in reporting the incident to Inspector Glendinning, his co-religionist, did not inform him what Mr McHendry said at the time and solely informed him of the fracas. The majority of the Tribunal, finding Mr McHendry less than impressive, was satisfied he was quite capable of making the remark, in light of his views and having lost his temper; and concluded that, despite his denial, Mr McHendry made the remark, in the course of the altercation in which he was as much involved, if not more so, as the claimant.

Notwithstanding he found Mr McHendry a less than impressive witness the minority member of the Tribunal was not prepared to accept the remark was made. In particular, he noted the failure of the claimant to inform Inspector Glendinning, his co-religionist, who would have been fully aware of the significance of such a remark and how it would have put a different complexion on what was otherwise an unpleasant workplace row over a bus allocation and placed it on a different level. As it was, Inspector Glendinning persuaded both men not to pursue the matter further as both could have suffered disciplinary action. The claimant had no difficulty in remembering the incident, and the remarks made; but yet did not raise it, the minority member of the Tribunal noted, until the replies to particulars in June 2001. He was confirmed in his view no such remark was made when the claimant, in evidence, but not before, said Mr McHendry had also alleged the claimant was a Fenian. The failure to have included this, even at the late stage of the replies, for the minority member threw even further doubt on the claimant's credibility in relation to this issue.

82. .76 The claimant invited members of staff to his post wedding 'do' in or about June/July 2000 by putting up a general invitation. Again, the Tribunal found it somewhat surprising that he did so, if the atmosphere in the depot and how he considered he had been treated was as bad as he had described; but concluded it had probably been done to gain some form of acceptance. This was a social event organised by the claimant himself, which was taking place outside the depot. No member of staff at the depot could be required to attend. Certainly, there were a few persons who attended from the depot, including Mr Dunlop and Ms McLaughlin; but that was clearly a matter for themselves. Ms McLaughlin attended the 'do', albeit she was one of the persons, (see later) who was involved in the 'doing/egging' of the claimant. There was no collection made for the claimant in relation to his wedding. Again, no-one could be required to make such a payment, even if a collection had been started. The Tribunal was satisfied that collections for weddings had been a wide-spread practice in the past in the depot but it was satisfied that, by the time of the claimant's wedding, such collections had been confined to retirements and transfers from the depot. There had been no weddings of drivers in the depot since the claimant had joined in 1995.

Certainly, there had been examples in the past where there had been a collection for weddings and which had involved Protestant staff in the depot; but any such collection was not formally organised by the respondent and was voluntary.

The claimant suffered a 'doing' in relation to his wedding. The Tribunal is satisfied that Inspector Corrigan, not only turned a blind eye to what was taking place, he had effectively agreed that it could take place when asked by one of the instigators of the action. Ms McLaughlin and Ms Bradley, the instigators of the action, were co-religionists of the claimant. The Tribunal was satisfied that such a 'doing' was a regular occurrence in the depot in previous years. Photographs of previous 'doings' in the depot were produced during the course of the proceedings, which again should have been discovered earlier. As indicated above, there had been no weddings of drivers in the depot during the period of the claimant's employment and therefore there had been no occasion for such a 'doing'. There were members of the garage married in this period; but none of them suffered a 'doing'. The claimant was the only member of staff to suffer a 'doing' in the period. The claimant clearly went along with what happened, although the Tribunal is equally satisfied that he was not happy about what took place. The Tribunal is satisfied that as the 'doing' took place in the main area of the depot that it would have been visible to many of the employees working there, many of whom watched and cheered and joined in at what was taking place. Ms McLaughlin assumed that this was a common practice in the depot, as she had seen it taking place in other depots where she had previously worked for the respondent. Since these events such 'doings' have been stopped by the respondent. The Tribunal was satisfied Inspector Corrigan saw more from his office of the 'doing' than he was prepared to admit.

83. .77 Inspector Corrigan did give the claimant a charge in relation to his failure to report for duty by 7.25 am as required on 20 June 2000 to drive the 7.45 am Belfast express. He tried to contact the claimant's home without success and, after he allotted another driver for the run, the claimant's wife phoned at 7.35 am to inform him the claimant was sick with flu. The Tribunal was satisfied that giving such late notice was appropriate for a disciplinary charge and that correctly Inspector Corrigan subsequently wrote up a report on 21 June 2000. It was thus a matter for Mr Wylie whether the charge was proceeded with. Mr Wylie subsequently decided to withdraw the charge and it was not proceeded with. The Tribunal did not consider either Inspector Corrigan or Mr Wylie had acted in any way improperly in the circumstances.
84. .78 The Tribunal had considerable difficulty in resolving the claimant's allegation in relation to the Remembrance Sunday parade in November 2000 and the alleged involvement of Mr Neilly. This parade occurred only shortly before the claimant reported his complaint of sectarian harassment to the company doctor; yet he himself made no reference to it at any time prior to the investigation of the matter by the investigation team. Indeed it was Mr Neilly who first referred to the events of that day, in support of his denial at the time of the investigation in February 2001 of any sectarian harassment carried out by him against the claimant. At the first meeting of the claimant with Mr Telford and Ms Grant, the claimant made no reference to this matter and indeed specifically denied that there was any recent event which had occurred prior to his complaining to the company doctor. The Tribunal is satisfied that, when this matter was first raised by Mr McGreevy, with the claimant, when informing the claimant of the result of the investigation on 26 February 2001, the claimant confirmed that nothing untoward, about which he had taken any offence had occurred, on this particular parade.

It was in the replies to the particulars that the claimant for the first time gave details of what he alleged had taken place on that day.

The Tribunal is satisfied that in agreeing to do this parade, the claimant did not realise it involved taking members of the Ballymena UDA, who are members of Ballymena Flute Band, and who had arranged the hire of the bus. However, in the replies to particulars, this failure to inform him did not form any part of the complaint made against the respondent; albeit was referred to in the course of the hearing. The Tribunal readily accepts that the claimant, whilst willing to do private hires, would clearly have preferred not have taken this particular private hire, if he had realised from the limited paper work he had seen, prior to doing the run, who were the persons who had hired the bus. The Tribunal was not clear from Inspector Glendinning's evidence what information about the parade the claimant had been given when he was asked to do the private hire to this Remembrance Service. The claimant had done private hires in the past, involving flute bands. However, it does not believe that Inspector Glendinning, a co-religionist, and who could readily understand the claimant's concern about having such persons on his bus would have deliberately, in order to get him to carry out the duty told him that it was an old people's run. The relevant booking details certainly did not disclose that members of the Ballymena UDA would be on the bus. As indicated above, Mr Neilly when he first raised the matter did not suggest that any difficulty had arisen between himself and the claimant during the private hire duty. At that stage he was not responding to any allegation by the claimant about the matter. However, when interviewed by the investigation team in September 2001 Mr Neilly said, inter alia, as set out in the typed up minute:-

'He may have told Mr Duffy they were taking the UDA away. There would be no harm in telling him who was going to be on the bus and that it was better that Mr Duffy knew who he was carrying. He may have been pointing out who was there for his own benefit. Mr Neilly said, for instance, he did remember one of the guys being in the bus who had been up for a stabbing but had not been convicted - there would have been some bad fellas on the bus'.

In light of what he said at the time of the investigation, the Tribunal was therefore satisfied Mr Neilly did tell the claimant who they were carrying on the bus, namely members of the UDA and also pointed out certain members, who had been involved in serious crime. In the course of cross examination, but not previously, he suggested he had done so to prevent the claimant making remarks about the members' appearance.

85. .79 In relation to the further incidents, which were alleged to have taken place in 2001 and, in particular the telephone calls on 8 July 2001, 19 September 2001 and 12 October 2001 and the delivery of the unordered take away on 19 September 2001, the Tribunal was again faced with the situation that the only evidence of these matters came from the claimant. There was a record of his informing the police of the call on 12 October 2001, but not of the other matters.

The claimant wrote promptly to Ms Grant about these matters on 25 September 2001 and 15 October 2001. In the letter of 25 September 2001, he did not refer to the call on 8 July 2001. Indeed he had not referred to it when he met Mr Telford/Ms Grant at their meeting in August 2001.

As has already been stated the Tribunal did not find the claimant's journal/entry of assistance in determining certain issues in this matter. Indeed it found the diary/journal most unsatisfactory and unreliable as an accurate contemporaneous record of main events following his complaint to the company doctor. Dates of some entries were clearly inaccurate and did not follow in appropriate sequence. The year was repeatedly wrong. It appears to have been written using the same pen/ink, which would be unusual for such a document. Some entries were clearly not written contemporaneously, despite the claimant's contentions to the contrary. The Tribunal could not accept, given the number and frequency of the errors that these could be explained by the claimant's depression. In such circumstances the Tribunal was not prepared to rely on the document in determining whether or not these or other matters took place.

Despite the failure to raise the phone call on 8 July 2001, until the replies to particulars, and the absence of any reference in the letter of 25 September 2001 or the meeting in August 2001, the Tribunal, on balance, was prepared to accept the phone call on 8 July 2001 took place. In doing so, it took into account the timing/sequence of this call with the other said calls; and the absence of any other evidence to suggest the call did not take place.

Given the promptness of his complaint, the Tribunal was prepared to accept the call on 19 September 2001 and the unordered delivery took place on that date. Similarly, the Tribunal was prepared to accept that the call on 12 October 2001 was made to him. In addition, the Tribunal noted that in relation to that call there was the record of the policy entry.

86. .80 The claimant applied, in the course of his evidence to seek to rely, in proof of his complaints, the subject matter of these proceedings, on a number of further incidents which he alleged had occurred in 2002, when he was no longer working for the respondent but for Homefirst. These incidents involved Stephen Neilly. The Tribunal relying on the judgment in the case of Anya -v- University of Oxford [2001] ICR 847 allowed this evidence to be given. There was no evidence to corroborate what the claimant was alleging and Mr Neilly denied them. The incidents relied on by the claimant were said to have occurred in the Spring/Summer 2002, some time after the events, the subject matter of these proceedings.

The claimant claimed that on or about 28 April 2002 in a local Costcutter store, which was near the home of Mr Neilly, Mr Neilly had sworn at him when approaching him in an aggressive manner. In a further incident, he alleged that Mr Neilly had followed him home, though Mr Neilly's mother, he accepted, lived nearby. He further alleged in July/August 2002, the claimant was driving a Homefirst vehicle when he met a vehicle of the respondent's, with Mr Neilly on board, and Mr Neilly had made a shooting motion towards him.

The claimant applied, in the course of the hearing, to give evidence in relation to an incident, again said to involve Mr Neilly, which he alleged had occurred on 29 July 2004, during the break over the summer period of these proceedings.

Again, in light of the Anya decision, the Tribunal agreed to admit this evidence. The claimant alleged he had been parked waiting for his daughter outside a local shop; when Mr Neilly, who had by then left the respondent, drove up alongside the claimant's vehicle blocking him in and reving his engine. As the claimant followed Mr Neilly's vehicle on his way home, he alleged he saw Mr Neilly giving a finger motion of a shot to the head on a number of occasions. The claimant reported the matter to the Police who took no further action following Mr Neilly giving a statement to the Police.

In the face of Mr Neilly's firm denial and the absence of any other corroborative evidence relating to these matters the Tribunal was not prepared to conclude that these matters occurred. These matters therefore were not found by the Tribunal to be of assistance and relevance in relation to the determination of those matters the subject matter of these proceedings.

87. .81 There was no evidence given of the claimant's political opinion. The fact that he was a Roman Catholic, without more, was not sufficient to suggest a political opinion, as required under the 1998 Order. (See further paragraph 3.6). The Tribunal found no evidence, in the circumstances, of unlawful discrimination on the grounds of political opinion in relation to either set of proceedings.
88. .1 The claims of the claimant of unlawful discrimination were brought pursuant to the Fair Employment and Treatment (Northern Ireland) Order 1998 (the 1998 Order).
89. .2 Under Article 3(2) of the 1998 Order, it is provided:-

"A person discriminates against another person on the ground of religious belief or political opinion in any circumstances relevant for the purposes of this Order if -

(a) On either of those grounds he treats or would treat other persons; or

….

Under Article 3(3) of the 1998 Order a comparison of the case in persons of different religion, religious belief or political opinion under paragraph 2 must be such that the relevant circumstances in the one case are the same, or not materially different, in the other.

90. .3 Under Article 19 of the 1998 Order, it is unlawful for an employer to discriminate against a person, in relation to employment in Northern Ireland.

…..

(b) Where that person is employed by him -

…

(iii) By dismissing him or by subjecting him to any other detriment.

In the case of Shamoon -v- Chief Constable of the RUC [2003] IRLR 285, the House of Lords held the detriment was an act which a reasonable employee might feel places him at a disadvantage with regard to the circumstances in which they work.

Under the 1998 Order, there was no definition of dismissal.

The Fair Employment and Treatment Order (Amendment) Regulations (Northern Ireland) 2003, (Regulation 9) amended the 1998 Order to include Article 19(3)(b) which provides a specific definition of dismissal, which includes "constructive dismissal".

Under the 2003 Regulations there are transitional provisions; but these do not provide transitional provisions for this Article. Thus, Article 19(3)(b) does not apply to these proceedings, which commenced prior to 10 December 2003, when the Regulations came into operation.

Similar difficulties arose in relation to the Race and Relations Act 1976, but in the case of Derby Specialist Fabrications -v- Burton [2001] ICR 833 it was held a dismissal should be interpreted to include constructive dismissal.

The Tribunal therefore decided it would follow, insofar as was necessary, the Derby Specialist case and was therefore satisfied dismissal under the 1998 Order included constructive dismissal.

91. .4 However, although the originating applications were presented in this matter prior to 2003, certain provisions of the Fair Employment and Treatment Order (Amendment) Regulations (Northern Ireland) 2003, which came into operation on 10 December 2003, do apply to these proceedings by reason of transitional provisions contained in Regulation 2 of the said Regulations. This is in contrast to the position in relation to issue of constructive dismissal, referred to in the previous paragraph.

Regulation 24, in particular, amended Article 38 of the 1998 Order, in relation to the burden of proof applicable to these proceedings - by the insertion of Article 38A, which states as follows:-

"Article 38A -

Where on the hearing of a complaint under Article 38, the complainant proves the facts from which the Tribunal could (Tribunal's emphasis) apart from this Article, conclude in the absence of an adequate explanation that the respondent -

(a) committed such discrimination or harassment against the claimant or

(b) is by virtue of Article 35 or 36 to be treated as having committed such an act of discrimination or harassment against the complainant and the Tribunal shall (Tribunal's emphasis) hold the claim unless the respondent proves that he did not commit or, as the case may be, is not to be treated as having committed that act".

The English Court of Appeal, in the case of Igen -v- Wong [2005] 3AER 812 considered provisions equivalent to Article 38A of the 1998 Order, in a sex discrimination case and approved, with minor amendment, the guidelines set out in the earlier decision of Barton -v- Investec Henderson Crosthwaite Securities Limited [2003] IRLR 332.

In a very recent decision of the Northern Ireland Court of Appeal the case of Bridget McDonagh and Others -v- Samuel Thom t/a The Royal Hotel Dungannon [2007] NICA 3, the Court approved the decision of Igen -v- Wong. The Court of Appeal further in the McDonagh case confirmed that it was necessary for a Tribunal to go through the two stage decision making process referred to in the case of Igen -v- Wong, if a complaint of unlawful discrimination was to be upheld.

…"The first stage required the complainant to prove facts from which the Tribunal could conclude in the absence of an adequate explanation that the respondent had committed the unlawful act of discrimination against the complainant. The second stage (which only came into effect if the complainant had proved those facts) required the respondent to prove that he did not commit or is not to be treated as having committed the unlawful act, the complaint is not to be upheld".

The Court of Appeal also confirmed that the amended Barton guidance, as to the correct approach to be taken to the incidences of the burden of proof, applied to a case of unlawful discrimination pursuant to the 1998 Order, as well as all other forms of unlawful discrimination.

The Barton guidance, as amended in Igen, provides, inter alia, in relation to the second stage -

"(10) It is then for the respondent to prove that he did not commit, or as the case may be is not to be treated as having committed that act.

(11) To discharge that burden it is necessary for the respondent to prove, on the balance of probabilities, that the treatment was in no sense whatsoever on the grounds of sex since "no discrimination whatsoever" is compatible with the Burden of Proof Directive.

(12) That requires a Tribunal to assess not merely whether the respondent has proved an explanation for the facts from which said inferences can be drawn, but further that it is adequate to discharge the burden of proof on the balance of probabilities that sex was not a ground for the treatment in question.

(13) Since the facts necessary to prove an explanation would normally be in the possession of the respondent, a Tribunal would normally expect cogent evidence to discharge that burden of proof. In particular, the Tribunal would need to examine carefully the explanations for failure to deal with the questionnaire procedure and/or code of practice.

92. .5 In this matter a central issue of the claimant's claim of unlawful discrimination, pursuant to the 1998 Order, is that he had been the victim of a number of incidents of harassment and intimidation of a sectarian nature. Under the 1998 Order, before amendment, there was no specific definition of harassment. The 2003 amendment Regulations, referred to previously, included Article 3A(1) and Article 19(1)(A) which stated as follows:-

Article 19(1)(A) provides that it is unlawful for an employer, in relation to employment by him in Northern Ireland, to subject to harassment a person whom he employs …

Article 3(A)(1) "A person ("A") subjects another person ("B") to harassment in any circumstances relevant to the purposes of any provision referred to in Article 3(2B) where, on the ground of religious belief or political opinion, A engages in unwanted conduct which has the purpose or the effect of

(a) Violating B's dignity or;

(b) Creating and intimidating, hostile, degrading, humiliating or offensive environment for B.

(2) Conduct shall be regarded as having the effect as specified in sub paragraphs (a) and (b) of paragraph (1) only if, having regard to all the circumstances, including, in particular, the perception of B, it should be reasonably considered as having that effect.

(3) With this Order a person subjects another to unlawful harassment if he engages in conduct in relation to that other which is unlawful by any provision mentioned in Article 3(2B).

Contrary to the submission to the claimant, the Tribunal was satisfied that in relation to this Article there was no relevant transitional regulation in the 2003 Regulations; thus, the Articles relating to harassment, were not in force for the purposes of these proceedings, as these proceedings commenced prior to 10 December 2003.

However, as with most of the discriminatory legislation, prior to 2003 there was no specific standing right for harassment. Under the 1998 Order, harassment was not actionable as such under the said Order. It was necessary, in order to bring a successful action under the 1998 Order, to show less favourable treatment in the normal way and show that harassment fell within the definition of detriment. In numerous cases (for example, De Souza -v- Automobile Association [1986] ICR 514), it has long been recognised harassment has the potential to be unlawful direct discrimination.

Indeed in the case of Porcelli -v- Strathclyde R.C. [1986] IRLR 177, it was suggested that if the form of [sexual harassment] was [gender] specific there was no need for a comparator. However, the decision of the House of Lords in the case of MacDonald -v- Advocate General for Scotland [2003] IRLR 512, the House of Lords made it clear that comparison remains a necessary ingredient of this type of unlawful conduct.

Such a comparison, as seen in the Shamoon case, can include a real or hypothetical comparator.

Thus conduct which subjects the victim to a detriment and is of a sectarian nature may not be sectarian harassment, contrary to the 1998 Order, if it cannot be shown that such treatment constituted less favourable treatment than that of a relevant comparator.

In these matters, the claimant did not point to any actual comparator; but was relying in the circumstances on a hypothetical comparator. As the House of Lords made clear in the case of Shamoon (see before) such a hypothetical comparator is permissible in the case of unlawful discrimination and it is not necessary to identify an actual comparator in any such case.

As Lord Nicholls in his judgment in the Shamoon case made clear the normal two step approach of tribunals, in considering whether the claimant received less favourable treatment than the appropriate comparator and then, secondly, that less favourable treatment was on the proscribed ground, "can often be avoided by concentrating on why the claimant was treated as he/she was and was the reason the said proscribed ground or some other reason. If the latter, the application fails. If the former, there will then usually be no difficulty in deciding whether the less favourable treatment, afforded on the proscribed ground, was less favourable than was or would have been afforded to others (see further paragraph 11 of the judgment).

As was stated in the sexual harassment case of Reed and Bull Information Systems Limited -v- Stedman [1999] IRLR 299 - "The essential element of sexual harassment is that it is words or conduct which are unwelcome to the recipient and it is for the recipient to decide for themselves which is acceptable to them and what they regard as offensive".

Many sexual harassment cases, prior to the introduction of the legislative amendment, relied on the definition seen in the EC code of practice "unwanted conduct of a sexual nature or other conduct based on sex affecting the dignity of women at work including unwelcome physical, verbal or non-verbal conduct".

This can clearly be adapted for the purposes of sectarian harassment, and unwanted conduct is essentially the same as "unwelcome or uninvited".

(see further Insitu Cleaning Company Ltd -v- Heads [1995] IRLR 4.)

93. .6 The claimant brought his proceedings on the grounds that he had been unlawfully discriminated on the grounds of his religious belief and political opinion pursuant to the 1998 Order. Political opinion is not defined in the 1998 Order.

In the case of McKay -v- Northern Ireland Public Service Alliance [1994] Northern Ireland 103 the Court of Appeal considered what was meant by political opinion. Kelly L J in that case stated it meant, " … the opinion relating to the policy of government and matters touching the government of the state …". This was approved in the case of Gill -v- N.I.C.E.M [2001] NIJB 299 when Carswell L C J, as he then was, said, …'the type of political opinion in question must be one relating to the government of the state on matters of public policy.'

As set out previously the Tribunal was satisfied no claim of such unlawful discrimination arose in these matters.

94. .7 Under Article 46 of the 1998 Order, time limits are set out under which claims under the 1998 Order are required to be made to a tribunal.

Article 46 of the 1998 Order provides:-

(1) Subject to paragraph (5) a tribunal shall not consider a complaint under

Article 38, unless it is brought before, whichever is the earlier or:-

(a) into the period of three months beginning with the day in which the complainant first had knowledge, or might reasonably be expected first to have had knowledge, of the act complained of; or:-

(b) the end of the period of six months, beginning with the day in which the act was done.

(5) … The Tribunal may nevertheless consider any such complaint the claim where application which is out of time if, in all the circumstances the case, considers that it is just and equitable to do so.

(6) For the purposes of this Article -

(a) when the inclusion of any term in a contract renders the making of the contract an unlawful act, that act shall be treated as extending throughout the duration of the contract;

(b) any act extending over a period shall be treated as done at the end of that period; and

…"

95. .8 In the case of Hendricks -v- Commissioner of Police for the Metropolis [2003] IRLR 96 CA, it was held, in determining whether there was "an act extending over a period", as distinct from a succession of unconnected or isolated specific acts, for which time will begin to run from the date when each specific act was committed, the focus should be on the substance of the complaints that the employer was responsible for an ongoing situation or a continuing state of affairs in which the claimant was treated less favourably; and the question is whether that is an act extending over a period as distinct from a succession of unconnected or isolated specific acts, for which time will begin to run from the date when each specific act was committed. Concepts of policy, rule, practice, scheme or regime in the authorities were given as examples of when an act extends over a period. They should not be treated as a complete and constricting statement of the indicia of "an act extending over a period".

It was therefore necessary for a claimant to show, by direct evidence or inference from primary facts, that the various incidents of discrimination alleged were linked to one another and were thus evidence of a continuing discriminatory state of affairs sufficient to satisfy the concept of "an act extending over a period".

Issues of time clearly go to the jurisdiction of the Tribunal to hear any such claim of discrimination and, if the claim is out of time, pursuant to the provisions of Article 46(1) then, under Article 46(5) it is then necessary for the Tribunal to determine whether it should consider a claim, which is out of time, on the just and equitable grounds referred to therein.

The Tribunal has a wide discretion and although the matters to be found in the Limitation Acts for extension of time in a claim for personal injuries in the High Court are useful guidance, they are no more than that. [See British Coal Corporation -v- Keeble [1997] IRLR 336]. Such relevant factors would include the length of and reasons for the delay in bringing proceedings and the extent to which the cogency of the evidence is likely to be affected by the delay, the promptness with which a claimant acted and/or took advice once he knew of the facts giving rise to a cause of action and also relative prejudices to the parties should the case proceed. In the case of Johnston -v- Chief Constable of the RUC [1998] N.I., approving Hickey

-v- Laggan t/a The Fly Bar [1995] unreported, the Northern Ireland Court of Appeal made it clear that the absence of prejudice does not make it just and equitable to ignore the time limits. Time limits are there to be observed and, as seen in the decision in the case of Robertson -v- Bexley Community Centre [2003] IRLR 434. The exercise of the discretion can be considered the exception rather than the rule.

In the second set of proceedings, the claimant also made a claim under the 1996 Order of constructive dismissal. As in a claim of unlawful discrimination, there are also relevant time limits for such a claim.

Under Article 145(2) it is provided:-

"Subject to paragraph 3, an industrial tribunal shall not consider a complaint under this Article unless it is presented to the tribunal -

(a) before the end of the period of three months beginning with the effective date of termination, or

(b) within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months".

The test of reasonable practicability, in order to extend time, as set out above, is a much narrower test than the test of just and equitable which is applicable to a claim of unlawful discrimination as set out previously.

96. 9 Under Article 137(1) of the 1996 Order, an employee is dismissed if:-

"…

(c) the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer's conduct".

To establish a claim for constructive dismissal it is necessary for a claimant to show the following (see Harvey on Industrial Relations and Employment Law Vol. 1 para. D1/403):-

(i) There must be a breach of contract by the employer. It must be an actual or anticipatory breach.

(ii) That breach must be sufficiently important to justify the employee resigning, or else it must be the last in a series of incidents which justify his leaving. Possibly a genuine, albeit erroneous interpretation of the contract by the employer, will not be capable of constituting a feudiation in law.

(iii) He must leave in response to the breach and not for some other, unconnected, reason.

(iv) He must not delay too long in terminating the contract in response to the employer's breach, otherwise he may be deemed to have waived the breach and agreed to vary the contract.

Such a breach of contract can include breach of the implied duty of trust and confidence. In the case of Mahmud -v- B. C. C.I. [1997] ICR 606, the House of Lords held "an employer shall not, without reasonable and proper cause, conduct itself in a manner calculated and likely to destroy or seriously damage the relationship of confidence and trust between employer and employee.

In the case of Bracebridge Engineering Limited -v- Derby [1990] IRLR 3, a case of sexual harassment, failure to properly investigate allegations of sexual harassment or to treat such matters with sufficient gravity was held to constitute breach of this term.

In Brown -v- Merchant Ferries Limited [1998] IRLR 682, the Northern Ireland Court of Appeal, said the test to be applied was whether the employer's conduct so impacted on the employee that, viewed objectively, the employee could properly conclude the employer was repudiating the contract.

In the case of Waltons and Morse -v- Donnington [1997] IRLR 488, the EAT held that it was a term of every contract of employment that, "an employer will provide and maintain for his employee insofar as is reasonably practicable, a working environment which is reasonably suitable for the performance by them of their contractual duties".

In relation to the said "last straw" doctrine it was stated in the case of Lewis -v- Motorworld Garages [1985] IRLR 465 - "the last action of the employer which leads to the employee leaving need not itself be a breach of contract, the question is does the cumulative series of acts taken together amount to a breach of the implied term".

If the Tribunal considers such a constructive dismissal has occurred, a tribunal is still required to consider the fairness of the dismissal.

Under Article 130 of the 1996 Order, and determining whether the dismissal was fair or unfair, it is for the employer to show -

(1) (a) reasons (or if more than one, principal reason) for the dismissal

and

(b) that it is either a reason falling within paragraph (2) or some other substantial reason of a kind such as to justify the dismissal of an employee being in the same position as the employee held.

Having established the said reason, it is then necessary for the Tribunal to

have regard to the provisions of Article 130(4) of the 1996 Order to

determine whether the employer's decision to treat the reason or the reason justifying the dismissal was a decision which in all the circumstances was within the range of reasonable responses available to the reasonable employer.

97. .10 In the second set of proceedings, the claimant also made a claim of unlawful victimisation under the 1998 Order. Under Article 3 it is provided:-

(4) A person ("A") discriminates by way of victimisation against another person ("B") in any circumstances relevant for the purposes of this Order if -

(a) he treats B less favourably than he treats or would treat other persons in those circumstances and

(b) he does so for a reason mentioned in paragraph (5).

(5) The reasons are that -

(a) B has -

(i) brought proceedings against A or any other person under this Order; or

(ii) given evidence or information in connection with such proceedings brought by any person or any investigation under this Order; or

(iii) alleged that A or any other person has (whether or not the allegation so states) contravened this Order; or

(iv) otherwise has done anything under or by reference to this Order in relation to A or any other person; or

(b) A knows that B intends to do any of these things or suspects that B has done or intends to do any of these things.

As the House of Lords made clear in the decision of Chief Constable of West

Yorkshire -v- Khan [2001] IRLR 830, victimisation occurs when, in any

circumstances relevant for the purposes of any provision of the act, a person is treated less favourably than others because he has done one of the protected acts. The burden of proof provisions also therefore apply to such a claim. Further, in order to make the necessary comparison, it is necessary to compare the treatment afforded to the complainant who has done a protected act and the treatment which was or would be afforded to other employees who have not done the protected act. In the absence of an actual comparator, the Tribunal must also consider the position of a hypothetical comparator. Lord Nicholls said that situations should be looked at subjectively and the question asked - "why did the alleged discriminator act as he did - what consciously or unconsciously was his reason"; or, as Lord Scott said, "the real reason the core reason the motive for the treatment complained off".

98. .11 Under Article 36(1) of the 1998 Order - "anything done by a person in the course of his employment shall be treated for the purposes of this Order as done by his employer, as well as by him, whether or not it was done with the employer's knowledge or approval".

The meaning of "in the course of employment" has been, for the purposes of the 1998 Order, determined in the leading case of Jones -v- Tower Boot Company Limited [1997] IRLR 168, a case of racist bullying, where it was decided that "in the course of employment" it should be given a wide and purposive interpretation; the words should be interpreted in the sense in which they are employed in every day speech and not restricted by reference to the principles laid down by case law for establishing an employer's vicarious liability for the torts committed by an employee. The application of the phrase is a question of fact for each tribunal to resolve. It was made clear in HM Prison Services -v- Davies [1998] unreported, that an act can take place in an "off duty" situation and still, depending on the particular facts, be held to be in the course of employment (see further Chief Constable of Lincolnshire -v- Stubbs [1999] IRLR 81, but contrast Waters -v- Commissioner of the Police of the Metropolis [1995] IRLR 531/Sidhu -v- Aerospace Composite Technology Limited [2000] IRLR 602). In such off duty situations, it is often difficult to discern from the authorities where the line has been drawn and each case, in this area, tends to be fact sensitive.

However, an employer is not liable for the acts of a third party who is not an employee or agent. In MacDonald -v- Advocate General for Scotland [2003] IRLR 512, the House of Lords, over-ruling the case of Burton -v- De Vere Hotels Limited (the famous Bernard Manning case) held that the employee could not be held vicariously liable for the acts of a third party and it was not relevant whether the employer could have, by the application of good employment practice, have prevented the harassment or reduced the effect of it.

3.12 Under Article 36(4) of the 1998 Order, it is provided that:-

"In proceedings brought under this Order against any person in respect of an act alleged to have been done by an employee of his, it shall be a defence for that person to prove he took such steps as were reasonably practicable to prevent the employee from doing that act or from doing in the course of his employment acts of the same description.

The burden of proof is on the employer. As was seen in the case of Canniffe -v- East Riding of Yorkshire Council [2000] IRLR 555, Burton J. said "The task of the Tribunal is -

(i) Identify whether the respondent took any steps at all to prevent the employee whom it is vicariously liable, from doing the act or acts complained of in the course of employment.

(ii) Having identified what steps, if any, they took, to consider whether there were any further acts that they could have taken, which were reasonably practicable. Whether taking any such acts would in fact have been successful in preventing the acts of discrimination in question is not determinative. An employer will not exculpate if it has not taken reasonably practical steps simply because, if it had taken those steps, they would not have prevented anything from occurring".

[see also further Brannigan -v- Belfast City Council [2002] unreported].

99. .13 The respondent also submitted that the Tribunal, if it decided that an award of compensation was applicable to be paid to the claimant in relation to his claims of unlawful discrimination, it should also consider, when doing so, whether any such award should be reduced for contributory fault on the part of the claimant. The respondent's representative was not in a position to point to any relevant authority.

Indeed the Tribunal was unable to find any authority to support the said submission. Certainly specific provision is made for such a reduction under the 1996 Order, in a case for unfair dismissal. No such a provision is made in the 1998 Order.

In the Tribunal's opinion, a relevant provision would have been necessary to have been provided in the 1998 Order, to enable such a reduction to be made in the award of compensation made under the 1998 Order. Whilst the compensation paid on foot of the 1998 Order is under tortious principles (see further Article 39(1)(b) and Article 40 of the 1998 Order), provisions relating to contributory negligence for the reduction of any compensation on a finding of negligence are the result of a specific statutory intervention (Law Reform (Miscellaneous Provisions) Act (Northern Ireland) 1948), which was introduced because, at, Common Law, where such a finding was previously made, it resulted in a complete defence to the defendant.

Thus, the Tribunal is not satisfied that contributory fault has any relevance to any issue of compensation to be awarded on foot of a claim under the 1998 Order.

100. .14 Under Article 39 of the 1998 Order, where a tribunal finds a complaint well founded may, if it considers it just and equitable, make an order of compensation for, eg, injury to feelings/personal injury/financial loss.

Following the case of Sheriff Klyne Tugs (Lowestoft) Limited [1991] IRLR 481, a tribunal, in a claim of unlawful discrimination, is able to award compensation for personal injury, subject only to the requirement of causation being satisfied. In the case of Essa -v- Laing [2004] IRLR 31, it was decided that, provided a direct link was established between the act of discrimination and the loss laid out, no issue of reasonable foreseeability was relevant in relation to any such award for personal injury.

In the case of Vento -v- Chief Constable of West Yorkshire Police (No 2) [2003] ICR 318, by way of guidance the Court of Appeal set out three broad bands of compensation for injury to feelings:-

(i) Between £15,000 and £20,000 for the more serious cases involving eg a lengthy campaign of discriminatory harassment. Only in the most exceptional case should an award of compensation for injury to feelings exceed £25,000.00.

(ii) Between £5,000 and £15,000 for serious cases not meriting an award in the highest band.

(iii) £500 and £5,000 for less serious cases, such as an isolated one of act of discrimination.

A tribunal has to be careful to ensure that, it takes into account any overlap between any claim for personal injury and any claim for injury to feelings.

Aggravated damages are available for an act of unlawful discrimination. Where the respondent has behaved in a high-handed, malicious, insulting or abrasive manner in committing the act of discrimination (Alexander -v- Home Office Acts [1998] ICR 85).

The Northern Ireland Court of Appeal, in contrast to the English Court of Appeal, in the case of McConnell -v- Police Authority of Northern Ireland [1997] IRLR 625, which is binding on this Tribunal, held that no such separate head should apply in discrimination cases but, where awarded, form part of the general award for injury to feelings.

In relation to pecuniary loss, the claimant is entitled to be put into the financial position he would have been but for the unlawful conduct of the employer - but, as seen before, provided the loss or damage claimed was caused by the discriminatory act it is not necessary to show the loss claimed was reasonably foreseeable.

Where a dismissal is both unlawful discrimination and unfair, Article 160 of the 1996 Order prevents double recovery of any head of loss which has already been taken account of in awarding compensation for the unlawful discrimination under the 1998 Order.

101. .1 The respondent submitted strongly that issues of time arose in both sets of proceedings, having regard to the timing of the various acts of alleged unlawful discrimination, the subject matter of each proceedings.

In particular, the respondent contended that the claims, in both sets of proceedings, pursuant to the 1998 Order were, for the most part, out of time and the discretion to extend time should not be exercised in the claimant's favour on the "just and equitable grounds". The respondent submitted, in relation to the various acts of unlawful discrimination relied upon by the claimant, no issue of continuous discrimination arose; and that the only claim that was in time in the first set of proceedings were the events alleged at the Remembrance Day Parade in November 2000. In relation to the second set of proceedings, the respondent submitted that the claims arising out of the phone calls in July 2001 and September 2001 were out of time as the second set of proceedings were not presented to the Tribunal until 8 January 2002.

The issue between the parties was therefore whether there was a succession of unconnected or isolated specific acts; or whether they were linked to one another, such as to show the continuing discriminatory state of affairs sufficient to satisfy the concept of "an act extending over a period" (See Hendricks -v- Commissioner of Police for the Metropolis [2003] IRLR 96). To enable the Tribunal to come to the conclusion on the foregoing matters, the Tribunal considered that it could not do so in advance of reaching a conclusion on whether the acts relied upon by the claimant were in fact discriminatory. It will therefore be necessary to return to this issue later in this decision.

102. .1 The Tribunal, in light of the findings of fact made by it, then proceeded to identify from those findings facts from which a tribunal could make a finding of unlawful discrimination, contrary to the 1998 Order, after drawing the relevant inferences in accordance with the first stage of the two stage process as set out in the case of Igen -v- Wong. Both sets of proceedings, having been ordered to be considered and heard together, it remains necessary for the Tribunal to consider and determine each set of proceedings.
103. .2 The claimant first of all considered the findings in the first set of proceedings, namely case reference number 84/01FET. As stated previously, the claimant did not rely on any named comparator but a hypothetical comparator. The Tribunal therefore, in considering the issue of comparator relied on the judgment of Lord Nicholls in the case of Shamoon, by addressing whether the reason for any less favourable treatment was on the proscribed ground.

Where the Tribunal concluded that the reason for less favourable treatment was on the grounds of the claimant's religious belief, namely that he was a Roman Catholic, it was satisfied that a hypothetical Protestant comparator would not have been so treated.

104. .3 In relation to the incident in or about July 1995 involving Darren Crawford, he was an employee of the respondent when he waved, in the depot, a Union Jack in the claimant's face when wearing an Orange Collar/sash and shouted, "Up the fucking Pope you fucker". He did not do this to anyone else; only to the claimant, a Roman Catholic, who had recently started work in the depot where there was a significant minority of Roman Catholics. The Tribunal was satisfied such conduct, was highly offensive, and by its nature must have been unwelcome to the claimant as he went about his work. Such offensive language, which emphasised the claimant's religious belief, constituted verbal harassment under the respondent's harassment policy but also involved the visual display of a flag contrary to the policy, but also the flags and emblems policy. Such conduct could therefore be harassment amounting to a detriment and could, having regard to the fact it was said to only the claimant, amount to less favourable treatment on the grounds of the claimant's religious belief. It took place in the depot, in the course of Mr Crawford's employment, and was therefore an act for which the respondent could be liable.
105. .4 Various comments were made by Mr Neilly at the depot, in the course of his employment, to the claimant in or about 1996/97, such as, "Don't buy a house there/You will get burned out" etc were not made to anyone else. They were said by Mr Neilly to the claimant, a Roman Catholic, who was in a mixed marriage and who had moved into a Protestant estate at around this time where many residents displayed such flags during the July period. There were also community tensions arising from Drumcree at this time. Such comments were not invited by the claimant and by their nature were frightening and which were likely to cause alarm or distress, and to be unwelcome as the claimant went about his work.

Mr Neilly, a Protestant, who lived on a Protestant estate would have been, in the Tribunal's opinion, fully aware of the significance of the words used by him to the claimant. Such offensive language, in the context of Northern Ireland, emphasised the difference in the claimant's religious belief from Mr Neilly, and was contrary to the respondent's harassment policy. Such harassment could therefore be a detriment and a further act of less favourable treatment on the grounds of the claimant's religious belief. Again, such comments were made in the depot by an employee of the respondent in the course of his employment, for which acts the respondent therefore could be liable.

106. .5 In relation to the damage done to the claimant's car on 12 September 2005, when it was involved in a collision with a vehicle driven by Mr Neilly, the crucial issue was whether the collision was a deliberate act on the part of Mr Neilly, a Protestant, against the claimant, a Roman Catholic or merely an unfortunate accident. The majority of the Tribunal were satisfied it was a deliberate act. The claimant sought to be compensated for the damage and was paid in full by the respondent. To carry out such a deliberate act could therefore be a further act of harassment amounting to a detriment constituting an act of unlawful discrimination on the grounds of the claimant's religious belief. There was no doubt that such an act by an employee was a matter for which the respondent could be liable. The minority member of the Tribunal considered that what happened was an unfortunate accident and, in the circumstances, was therefore not satisfied that an act of unlawful discrimination could therefore be established.
107. .6 As set out in the Tribunal's findings of fact, the Tribunal was not satisfied the incidents alleged to have taken place in the fuel hut or that the comments alleged in the pay in room were made. In such circumstances, the Tribunal did not consider such matters required to be considered further as no claim of unlawful discrimination could be established.
108. .7 The Tribunal was satisfied that flags had been displayed in the depot in 1996 and 1997, contrary to the respondent's harassment policy and joint declaration of protection. The claimant had not made any specific complaint about these matters and was not apparently personally aware of them at the time. In the circumstances, the Tribunal therefore did not consider these incidents could themselves constitute acts in themselves of unlawful discrimination, which were the subject matter of these proceedings, and which therefore required to be considered further at this stage.
109. .8 Mr Colvin and Mr Neilly, both of whom are Protestant and members of the Masonic Order made remarks to the claimant in the depot about their membership of the Order; and, in particular, that their membership allowed them to get away with things. In the Tribunal's opinion, such remarks could only have been said to indicate some form of superiority over the claimant, a Roman Catholic, who was not a member of the Order by two Protestants, who were members of the Order. There was no suggestion that such remarks were made to anyone else. Such remarks could therefore be harassment, amounting to a detriment and a further act of less favourable treatment on the grounds of the claimant's religious belief. The making of such remarks in the depot by an employee in the course of his employment could therefore be an act for which the respondent could be liable.
110. .9 The Tribunal was satisfied there was a leaflet campaign calling for a boycott of Catholic shops in Ballymena; but was not satisfied that such leaflets were distributed in the depot as part of any such campaign; albeit it accepted that such a leaflet could have found itself in the depot. In such circumstances the Tribunal considered this was not a matter which required to be considered further at this stage. It further accepted the claimant did find a leaflet on one occasion and gave it to Mr Simpson, the Inspector who crumpled it up and put it in the bin. In the Tribunal's view, such action by Mr Simpson was very appropriate and could not give rise to a finding of unlawful discrimination.
111. .10 In the Tribunal's view, the comments made by Mr Colvin in the depot in or about 1998, namely, "I wish the fucking troubles would start again, as you will be the first Fenian that would be shot", was a blatant act of sectarian harassment directed at the claimant, a Roman Catholic. It would not have been said to a Protestant. It was said in the workplace, which required to be a neutral working place under the respondent's harassment policy and declaration of protection. It was clearly by its content unwanted and objectionable and there was no suggestion such a comment had been invited by the claimant. It therefore also could constitute less favourable treatment on the grounds of the claimant's religious belief, being a detriment involving obvious sectarian harassment by an employee of the respondent for whose actions the respondent could be liable.
112. .11 The Tribunal did not find that the claimant had been stopped, as shunter/cleaner, from driving buses in the yard. Although the Tribunal is prepared to accept that the claimant had been refused by Mr Simpson, the Inspector, the opportunity to go home early on Christmas Eve, the Tribunal did not consider any issue of unlawful discrimination could arise as this refusal was in accordance with the normal practice and style of Mr Simpson to refuse all staff, of whatever religion such an opportunity. The Tribunal was satisfied that Mr Wylie, the Depot Manager, swore at the claimant in relation to a dispute over payments due to the claimant in lieu of working over the Easter period in 2000. In the view of the Tribunal, whilst acknowledging that Mr Wylie's actions were unacceptable and an example of bad management by him, it did not believe that it had anything to do with the claimant's religious belief. It therefore did not require to be considered further by the Tribunal.
113. .12 The claimant in the period 1997/98, was the victim of unwanted deliveries, which had not been ordered, to his home and on one occasion the depot; and also the victim of the arrival of unordered taxis to the house. The claimant had openly discussed with his fellow employees in the depot what was happening and his upset about them. Indeed, following such a discussion, Mr Portis had decided to accuse Mr Neilly; although subsequently he apologised for doing so. However, there were no further deliveries after this time. The Inspectors and Depot Manager knew of these deliveries but took no further action. Such actions were clearly contrary to the harassment policy if they were carried out by an employee of the respondent. No employee was ever identified; but following the intervention of Mr Portis no further deliveries occurred, while the claimant was still working at the depot. No investigation was carried out, although the Tribunal acknowledged that might not have revealed the actual perpetrator. However, there was an acceptance by the Inspectors and the Depot Manager, in particular, at the depot that these deliveries were being carried out by an employee in the depot. Although such actions were contrary to the respondent's harassment policy, no general warning was issued to the employees in the yard at the time and no other employee suffered such conduct; only the claimant, a Roman Catholic. The harassment policy envisaged, for example, as a form of harassment, an abusive phone call to a home. So as such a delivery to a home must be included.

Given the involvement of an employee in the depot, albeit unidentified, and who was taking such action against a fellow employee, the Tribunal is satisfied such action was carried out by an employee in the course of his employment and for which actions the respondent could be liable (See further Jones -v- Tower Boot). These actions therefore could be harassment amounting to a detriment and in the circumstances constitute less favourable treatment suffered by the claimant by reason of his religious belief.

114. .13 Keys belonging to the claimant went missing in or about 1997 and subsequently were found in places where the claimant could not have innocently left them; and had, in the Tribunal's opinion, occurred following deliberate actions on the part of an employee of the depot. No such action happened to any other employee. Both Mr Simpson and Mr Wylie acknowledged an employee could have been involved. The claimant reported the keys missing. Although there was the recognition that an employee could have been involved, no investigation was carried out and no warning was given to those employed at the depot; although such action was clearly in breach of the respondent's harassment policy. To deliberately hide the claimant's keys, the Tribunal concluded, could be harassment amounting to a detriment. Such action by an employee in the depot has to be an act in the course of that employee's employment for which the respondent could be liable. (see further Jones -v- Tower Boot). Therefore, in the above circumstances, such an action could be an act of less favourable treatment on the grounds of the claimant's religious belief.
115. .14 The Tribunal was satisfied that Mr Neilly attended the stand off parade with the claimant in the summer of 1999 at the Ormeau Road, Belfast. The Tribunal concluded the remark was made when a band member raised concerns about going home and in response Mr Neilly had said, "They would get home safely by putting the claimant in front where he would wear his crucifix". There was no dispute this was a stand off parade, which meant the police were preventing a parade going down the Ormeau Road. The remark involved a clear reference to the claimant's religious belief. The claimant was at all times to be allowed to work in a neutral working environment, on foot of the respondent's harassment policy and joint declaration of protection. It was said by Mr Neilly in the course of his employment.

In the circumstances, the Tribunal was satisfied such an act could be harassment amounting to a detriment and an act of less favourable treatment on the grounds of the claimant's religious belief, for which the respondent could be liable.

116. .15 In relation to the McKendry incident in December 1999, the Tribunal was satisfied there was an altercation/fracas between the claimant and Mr McHendry relating to the allocation of a bus and the claimant's refusal to leave the bus which had been allocated to Mr McHendry. Whilst such an incident was clearly most unpleasant, the fracas alone would not, in the Tribunal's opinion, have been sufficient to shift the burden. What was crucial related to the remark made by Mr McHendry.

As stated previously, the majority of the Tribunal were satisfied the words were said by Mr McHendry. The words having been said, as found the majority, were clearly objectionable unwanted behaviour on the part of an employee in a depot, which was required to be a neutral working environment and thus, what was said by Mr McHendry, could have constituted harassment amounting to a detriment. In one sense the words said had a political basis; but the Tribunal considered Mr McHendry was making the remark as a form of abuse, because the claimant was a Roman Catholic and not because of any political opinion the claimant might or might not have.

In the circumstances, such remarks could therefore constitute a further act of unfavourable treatment on the grounds of the claimant's religious belief.

117. .16 In relation to the events surrounding the wedding, it is the view of the Tribunal that the failure of other employees to respond to this invitation to go to the post-wedding 'do' could not be an act of unlawful discrimination. This was a private party held in his own time and not on the respondent's premises. Attendance at such a function could not be imposed by the respondent.
118. .17 Collections again could not be imposed, whether an employee contributed or not. It would always be a matter of personal choice. In any event, the Tribunal was satisfied that, although there had been whip rounds/collections for weddings in the past for Protestant staff, by the time of the claimant's wedding, any collections had been confined to retirements and transfers from the depot. In the circumstances, the Tribunal were not satisfied that there could be any finding of less favourable treatment on the grounds of his religious belief for which the respondent could be liable. The Tribunal also noted that, until the replies to particulars in June 2001, no such claim of unlawful discrimination had been made by the claimant; even though this had only occurred a short time prior to his report to the company doctor.
119. .18 The claimant did suffer a 'doing' in the yard, in front of and with the assistance of other staff and this action had been effectively agreed to by Inspector Corrigan, a co-religionist of the claimant. The instigators of the 'doing' were co-religionists of the claimant. The Tribunal was satisfied that, although the claimant went along with what happened, he was clearly not happy with what had taken place. The majority members of the Tribunal concluded that such action could, in the circumstances, constitute harassment amounting to a detriment. It was the first wedding of a driver of the depot and he had been, in their view, singled out for a 'doing'. Protestant members of the garage staff, who had been married in the period of the claimant's employment had not suffered such treatment. In the circumstances therefore, the majority members of the Tribunal concluded that what occurred could amount to less favourable treatment on the grounds of the claimant's religious belief and for which the respondent could be liable. It was agreed to by an Inspector and took place in the depot itself by staff employed by the respondent during working hours. The minority member of the Tribunal believed the reason for the treatment was that the claimant was getting married and his religion was not relevant. The 'doing' had been instigated by his co-religionists and Ms McLaughlin had assumed it was a common practice to do it, having seen it take place in depots where she had worked. The minority member of the Tribunal also noted that, although this was a recent event, it was not the subject of a complaint when the proceedings were originally brought or even during the period of the investigation. At the initial meeting, in January 2001, with Ms Grant/Mr Telford, the claimant had specifically stated that no recent event had taken place.
120. .19 The Tribunal concluded that the placing of the charge by Inspector Corrigan, the claimant's co-religionist, for giving late notice of his sickness was perfectly proper and could not be the subject of a claim of unlawful discrimination on the grounds of his religious belief. The call notifying the respondent was late and required therefore to be the subject of a charge. Subsequently, the charge was withdrawn by Mr Wylie.
121. .20 The Tribunal was satisfied the claimant had been with Mr Neilly on a private hire duty, the Remembrance Day Parade in November 2000, and had told the claimant they were taking the UDA away and identified specifically certain members of the UDA on the bus who had various serious convictions. The Tribunal could understand how such a statement made by a Protestant driver to a Roman Catholic driver, carrying such passengers, could have been unnerving and caused some alarm/distress. It was related to the claimant because he was a Roman Catholic driver. There was no suggestion that the claimant had invited such a remark to be made to him. In such circumstances, such a statement could be harassment amounting to a detriment and less favourable treatment of the claimant on the grounds of the claimant's religious belief. Such an action by an employee in the course of his employment was an action for which the respondent could be liable.
122. .21 The Tribunal, as set out in the findings of fact, made various criticisms of the manner in which the investigation team carried out its work, including in particular the failure to put the specific comments of Mr Colvin to Mr Colvin and Mr Dunlop and also in relation to the manner in which the team reached its decisions and conveyed these to the claimant. It is also apparent the Tribunal has disagreed with many of the conclusions reached by the team. However, whilst criticisms can be made the Tribunal was of the opinion that the team, which included a Protestant and a Roman Catholic, would have acted in the same way whether the claimant was a Protestant or a Roman Catholic and reached the same conclusion that there was no evidence to substantiate the complaints. The failure to do so was not related to the claimant's religious belief but to their apparent lack of understanding and to do what was required to carry out such an investigation. Indeed, it suggested to the Tribunal a training need for the investigation team. In seeking to put pressure on the claimant to return to work, despite the contents of the company's medical reports, again the majority of the Tribunal was not satisfied that this was in any way connected to the claimant's religious belief.
123. .1 In light of the conclusions reached by the Tribunal in the preceding paragraph that such acts could constitute acts of unlawful discrimination, it was necessary for the respondent to discharge the burden of proof in accordance with the guidance set out in the case of Igen -v- Wong.

As the guidance makes clear, the Tribunal would normally expect cogent evidence to discharge that burden. At this stage, it was therefore necessary for the Tribunal to consider whether an adequate non-discriminatory explanation had been given by the respondent. Where such an explanation has not been given, pursuant to Article 38A of the 1998 Order, the Tribunal must uphold the discrimination claim.

Any such finding however, was also subject to the Tribunal finding that the Tribunal had jurisdiction to hear the said claims and that they were not out of time (See further paragraph 7.1).

124. .2 The respondent's explanation for the claims relating to Mr Crawford, the comments by Mr Neilly in relation to "Don't buy a house there" etc and those of Mr Colvin and Mr Neilly in relation to the Masonic Order was simply that these events did not occur. For reasons stated previously, the Tribunal is satisfied the events did occur and such a denial therefore did not discharge the burden now placed on the respondent. The majority decision of the Tribunal that the collision involving the claimant's car and the bus driven by Mr Neilly was deliberate and not an unfortunate accident, as found by the minority member, meant that there was no non-discriminatory explanation given by the respondent. Again, there was no explanation given for Mr Colvin's comment - "I wish the fucking troubles would start again as you will be the first Fenian who would be shot" - other than it did not occur, which denial the Tribunal did not accept. Thus again, the necessary non-discriminatory explanation had not been given by the respondent.
125. .3 The unordered deliveries to the claimant occurred in the judgment of the Tribunal. There was no attempt to provide a non-discriminatory explanation for them, other than there was no specific employee identified who had carried out the deliveries; albeit it was recognised such actions involved an employee in the depot. The Tribunal was satisfied that an employee, albeit unidentified, was involved and no non-discriminatory explanation was given for such an action by an employee.
126. .4 In relation to the claim that the keys of the claimant went missing which were subsequently found, the Tribunal is satisfied it was a deliberate act by an employee. This was also recognised by Mr Simpson and Mr Wylie; though no investigation was carried out or warnings given at the time, despite their awareness of where responsibility lay. It is correct that the claimant had a habit of losing equipment including keys and this might have provided the necessary explanation. However, in this case, where the keys were found was such that it had to involve a deliberate act on the part of an employee. Thus, in the Tribunal's opinion this could never be a proper non-discriminatory explanation for what had occurred. Therefore, the burden had not been discharged by the respondent.
127. .5 Mr Neilly denied that he made the comment at the stand off parade. Similarly, Mr McHendry denied that he had made the offensive remark during the altercation/fracas which occurred in the yard over the allocation of the bus. As set out above, these denials were not accepted by the Tribunal. No non-discriminatory explanation was provided for the remarks by the respondent other than they were not made. The burden had therefore not been discharged by the respondent. There was no suggestion by Mr Neilly, which could have been very relevant, that it was said to lighten a tense situation.
128. .6 In relation to the 'doing' at the wedding, the majority of the Tribunal was satisfied that no proper non-discriminatory explanation was given for allowing such an event to take place, in circumstances where the claimant, a Roman Catholic, was the only person to suffer such a 'doing' in the depot in the five years of his employment. It had effectively been agreed to by management in circumstances where, although there may have been a previous practice, it had not been carried out when members of the garage staff had been married during the said period. There was no proper explanation given why the claimant, unlike the garage staff who were married, were given the 'doing'. Again, the Tribunal was not satisfied that the burden had been discharged, as required under the guidance set out in Igen -v- Wong.
129. .7 In relation to comments made by Mr Neilly at the Remembrance Day Parade in November 2000, Mr Neilly did give an explanation, when asked by the investigation team in September 2001. His explanation was that, in essence, he had made the comments to the claimant for his own benefit and there was no harm in telling him who he was carrying. In the course of cross-examination, the claimant had expanded upon this to suggest it was to prevent the claimant from making remarks about the appearance of some of the members. The suggestion was this was done for his own protection. The majority of the Tribunal found this explanation to be less than credible and did not believe it. The majority could see no circumstances where the claimant, a Roman Catholic, would have been likely to make any such remarks to those on the bus whom he knew were members of a Protestant flute band. The minority member of the Tribunal, was of the view that much depended on the context and tone of any such remark. Not without some hesitation, he was prepared to accept the explanation. He did so since he considered, if the claimant had found the whole situation at the Remembrance Sunday Parade a further example of sectarian harassment, he would have said so from the outset. This was the closest event in time to when the claimant complained to the company doctor but was not claimed until the replies to the particulars in June 2001. It was Mr Neilly, when first interviewed, who first referred to the Remembrance Day Parade - as an example of the good relationship between him and the claimant. Further, at the first meeting with Mr Telford/Ms Grant in January 2001 the claimant had denied that there were any recent events which constituted sectarian harassment against him. Thus, the majority of the Tribunal were not satisfied the burden had been shifted.
130. .8 In the circumstances, the Tribunal was therefore satisfied that the claimant had been unlawfully discriminated against, as set out above, on the grounds of his religious belief. However, before proceeding further, it was necessary for the Tribunal to consider the claimant's contention that the first set of proceedings were out of time, other than in relation to the claim relating to the Remembrance Day Parade.
131. .1 In light of the findings, as set out in the preceding paragraph, the majority of the Tribunal was satisfied that what had taken place throughout the period of the claimant's employment were not a succession of unconnected or isolated specific acts for which time would have begun to run from a date when each specific act was committed; but rather, were evidence of a continuing discriminatory state of affairs in the depot and therefore were acts extending over a period. In essence, the majority of the Tribunal were satisfied that up until November 2000, the last act relied on by the claimant in relation to this first set of proceedings, the claimant had been the victim of a campaign of sectarian harassment carried out in the depot by various members of staff employed by the respondent at the depot.

The minority member of the Tribunal would have been prepared to accept that such a discriminatory state of affairs existed until in or about 1999; but, in view of his conclusion, that there were no such acts of unlawful discrimination in or about 2000, he would have found the first set of proceedings to be out of time and it would then have been necessary for the Tribunal to consider whether time should be extended on the just and equitable grounds. In light of the decision of the majority, that the first set of proceedings were in time, such consideration was not required to be made by the Tribunal.

132. .2 In addition to contending that the claim was out of time, the respondent also sought to rely on the provision of Article 36(4) of the 1998 Order. The Tribunal was not satisfied that the respondent had shown that it had taken such steps as were reasonable and practical to prevent an employee from doing the said acts complained of and which the Tribunal had found to be acts of unlawful discrimination. In particular, whilst the respondent had introduced a harassment policy and signed up to the joint declaration of protection, those employed in the depot in 1997 were merely sent a copy of a policy in the post. There were no relevant training courses organised in relation to the policy following its introduction. Despite the fact that flags had been displayed in the depot, there was no investigation carried out or general warnings given to all those working in the depot at the time. Such actions would have, in the Tribunal's opinion, been of relevance in establishing the defence provided by Article 36(4) of the 1998 Order. Similarly, although the deliveries to the claimant and the keys incident were known to involve an employee/employees working in the depot, in particular, no warnings were given at any time, with particular reference to the respondent's harassment policy. Such proactive steps, in the Tribunal's opinion, would not have identified the perpetrator but would have made clear to the employees the consequences of such action and allowed proper reminders of the respondent's harassment policy to be given. In the Tribunal's view, it was not enough merely to circulate the policy. Whilst the policy provided for a harassment adviser, the Tribunal was not satisfied the poster about the adviser was on the depot notice board at the time the claimant reported his complaints to the company doctor. During the time of the unordered deliveries and the incident of the keys, he was not referred to the policy or indeed the role of the harassment adviser. The failure to refer at any time to the role of the harassment adviser in the course of the interviews with the claimant about these matters, was a further indication, in the Tribunal's opinion, of the respondent's failure to take the necessary steps to enable it to defeat the claim. The role of the harassment adviser, as set out in the harassment policy, was clearly an important role, and designed to assist any employee who felt he was the victim of any such harassment. Despite its importance, the Tribunal noted that not only was it never referred to during the course of the investigation into these matters, but also the poster was not provided by way of Discovery until the commencement of the proceedings.
133. .1 In relation to the second set of proceedings (reference number 28/02FET, 140/02), in light of the findings of fact as found by the Tribunal, the Tribunal identified the following facts from which a tribunal could make a finding of unlawful discrimination, after drawing appropriate inferences from the facts so found, in accordance with the first stage of the two stage decision making process, as set out in Igen -v- Wong.
134. .2 The Tribunal accepted that a telephone call was made to the claimant's house on 8 July 2001, purporting to be a call from the Police but which turned out to be false; and further a call was made to the claimant's house on 19 September 2001 with a person whistling the 'sash' to him and that subsequently on that day he received a delivery of a Chinese meal which he had not ordered, but which order docket included not only his address but also his phone number which was ex-directory. The Tribunal was also satisfied that an employee, if he had wished to do so, could obtain the claimant's address and home phone number, as these were not kept sufficiently securely in the Inspector's Office in the depot. Although the claimant, by this time, had gone ex-directory he had not changed his telephone number. It is correct that telephone calls had never previously been a feature of the harassment carried out against the claimant; but unordered deliveries and carry-outs and other materials, such as oil and stone, had taken place. The harassment policy recognised harassment could include abusive phone calls to home as well as to the workplace. There was no suggestion that such calls/deliveries happened to anyone else. The introduction of the whistling of the 'sash' was, in the Northern Ireland context, clearly suggestive of religion. The claimant wrote promptly to Ms Grant on 25 September 2001 to inform her of what had happened on 19 September 2001 and how he felt it was further sectarian harassment. The Tribunal could accept, in the above circumstances, that such a call and delivery on 19 September 2001 could be harassment amounting to a detriment and that, in the circumstances, he could have been less favourably treated on the grounds of his religious belief.

The call on 8 July 2001 could be such a detriment but given that it did not follow a similar pattern to what had taken place previously nor introduced any element of religion, the Tribunal was not prepared to accept that such a call could amount to less favourable treatment on the grounds of the claimant's religious belief. Also, the call was not in fact received by the claimant, but by his wife.

However, in order for the burden to shift to the respondent, there was one further crucial issue which required to be considered by the Tribunal. This related to whether the respondent could be liable for such treatment in the absence of any identified employee of the respondent or any direct evidence that a employee of the respondent was involved in carrying out the said harassment. In light of the previous history of such unordered deliveries and the use of a telephone number, albeit now ex-directory, which could have been obtained from the depot by an employee, the Tribunal came to the conclusion that, on the balance of probabilities that the making of the telephone calls and/a person arranging the delivery of the carry-out was by an employee of the respondent. Further, since any such action by an employee had to be connected with the employment of the claimant at the depot, as there could have been no other reason for such action by an employee, the Tribunal concluded such an act was carried out in the course of employment, for which the respondent could be liable [Jones -v- Tower Boot].

135. .3 The telephone call on 12 October 2001, which again the Tribunal accepted occurred, was particularly offensive and threatening. By referring to the claimant as a Fenian, it clearly suggested it related to his religion and it further was tied into his work as a driver with the respondent. Again, the Tribunal had no hesitation in concluding that such a call could be harassment amounting to a detriment and that the claimant could have, in the circumstances, been less favourably treated on the grounds of his religious belief. As in the previous paragraph, the Tribunal required to consider who made this call and could it have been an employee of the respondent and for whose actions the respondent could therefore be liable. There was no direct evidence relating to the identity of the caller. This call followed the call on 19 September 2001 and the delivery of the carry-out, which the Tribunal has already concluded was by an employee of the respondent. The maker of the call seemed to have considerable knowledge of the claimant, namely he was a Roman Catholic and worked as a driver for the respondent. A chance hoax caller was most unlikely to have had any such knowledge. There were clear parallels with the pattern of previous behaviour, not least the call of the previous month. Again, any such a call made by an employee of the respondent related to the fact that the claimant was employed at the depot and the type of work that he carried out there. In the circumstances, the Tribunal concluded that such action was carried out by an employee acting in the course of his employment, for which action the respondent could be liable. (See Jones -v- Tower Boot).
136. .4 Ms Grant responded promptly to the correspondence from the claimant; but made it clear she was not prepared to commence any investigation in the absence of any evidence of the involvement of an employee of the respondent. The claimant had tried to trace the call of 12 October 2001 but the number had been withheld. The Tribunal believed it was most unlikely that the claimant would ever have been able to produce any such direct evidence as sought by Ms Grant. Indeed, the Tribunal believed it was unrealistic for her to expect him to do so. Ms Grant was experienced in dealing with cases of harassment and was fully aware of the difficulty of obtaining such direct evidence on such matters. The absence of the identity of any such employee may mean that the action which can be taken is limited; and, in particular, disciplinary action against a specific employee cannot be taken. However, even if an employee can not be specifically identified, that does not mean that harassment has not taken place; and that it remains necessary to take action to ensure that, insofar as possible, in the circumstances, that an employee is protected from harassment, in accordance with the respondent's harassment policy and joint declaration of protection. Again, although the claimant was clearly expressing the view that further harassment was taking place, Ms Grant made it clear that she was not prepared to activate the complaints procedure under the harassment policy and did not even refer the claimant to the harassment adviser. The Tribunal was particularly concerned by the failure of Ms Grant to take any action, having regard to the previous pattern of events. The Tribunal accepts that any action she could take in the circumstances would have been limited, in the absence of any specific identity of any employee. Telling him to put a trace on his telephone line, which he in fact had done, at the meeting on 31 October 2001, was clearly good advice. Crucially, the Tribunal's criticism relates to the blank refusal by Ms Grant to take any further action in the circumstances. In the Tribunal's view and in the absence of any other evidence, to have reiterated to the staff at the depot the terms of the harassment policy and what constituted harassment would have probably been sufficient. The claimant would have seen that the respondent, insofar as it was able to do so was taking action, giving him support and making it clear to employees at the depot that if any such conduct was taking place it would not be tolerated by the respondent. However, again, the Tribunal did not consider these failures by Ms Grant related to the claimant's religious belief. In the opinion of the Tribunal she would have done the same; if the claimant had been a Protestant.
137. .5 The claimant had brought his previous complaint, the subject matter of the first set of proceedings, which had been investigated by Ms Grant, along with Mr McGreevy, but which had not been upheld. The result of the previous investigation had been that there was no evidence to substantiate it. In the Tribunal's view, Ms Grant was saying, in her letters of 28 September 2001 and 22 October 2001 that, in terms, she was not going to embark on a similar investigation where the result in her view would be the same. The Tribunal was not satisfied that if anyone else had come to Ms Grant with the same set of facts/complaints, but without the previous history of making such a complaint, that Ms Grant would have refused to take any action unless evidence of Ulsterbus employee involvement was produced. In the Tribunal's view, it was this factor of the claimant's previous complaint that resulted in the failure on the part of Ms Grant to take any action. This previous complaint was a 'protected act' for the purposes of Article 3(4) and (5) of the 1998 Order. Given the previous pattern of behaviour, this was all the more reason, in the Tribunal's view, for the respondent to have taken action. Thus, the Tribunal considered that the claimant could have been victimised by the respondent and thereby unlawfully discriminated against contrary to the 1998 Order, having made his previous complaint of discriminatory harassment contrary to the 1998 Order.
138. .6 It was therefore necessary for the respondent to discharge the burden of proof, in accordance with the guidance set out in the case of Igen -v- Wong, in relation to those matters which the Tribunal concluded, as set out in the preceding sub paragraphs, could have been acts of unlawful discrimination on the grounds of the claimant's religious belief.
139. .7 In relation to the phone calls and delivery in September/October 2001, the explanation provided by the respondent was that they did not occur and which the Tribunal, for the reasons set out above, does not accept. Secondly, the respondent contended there was no evidence that any employee, of the respondent acting in the course of his employment was involved. The Tribunal having been satisfied that an employee of the respondent was involved who was acting in the course of his employment, it was not satisfied that the respondent had discharged the burden of proof, as required.
140. .8 The Tribunal was further not satisfied that the respondent produced the necessary explanation to discharge the burden in relation to the claim of victimisation. It did not provide any explanation to show why it had failed to take action when it would in the Tribunal's opinion have done so for a person who had not complained previously. The fact that the previous complaint had not been found to be substantiated was not such an explanation.
141. .9 These further acts in September 2001 and October 2001 occurred some period after the original acts of harassment relied on by the claimant. Indeed, the last of those acts had been in or about November 2001.

In February 2001, the investigation team did not uphold the claimant's complaints. At that time the claimant had already brought proceedings. Following the replies to particulars in June 2001, there had been necessity for further investigation and interviews with employees into the additional matters referred to in the said replies. These were held in early September 2001. These further acts followed these further interviews; and, in the Tribunal's view the timing was potentially relevant and significant.

To establish a claim of victimisation the Tribunal had to be satisfied that the reason the claimant suffered these acts was because he had done one of the 'protected' acts under Article 3(4)(5) of the 1998 Order, namely by making these further complaints of unlawful harassment, on foot of the proceedings he had brought, and which had been the subject of further investigation in September 2001.

The Tribunal had no doubt that these acts in September 2001 and October 2001 could be considered less favourable treatment. Given the similarities with what had taken place previously and the timing of the further commencement of these further acts, which as set out previously the Tribunal is satisfied were carried out by an employee of the respondent acting in the course of employment, the Tribunal concluded that the reason for such acts could, in the circumstances, be because the claimant had done the said protected act. It did not believe that a person who had not made these further complaints, which required further investigation, would have suffered such treatment. In the circumstances, it was therefore satisfied the claimant could have been victimised by the respondent.

142. .10 The respondent did not provide any non-discriminatory explanation for such acts of victimisation; other than to dispute that the findings made by the Tribunal, as set out in the preceding sub-paragraph took place. In the circumstances, the Tribunal was not satisfied the claimant had thereby discharged the burden of proof, as required under the second stage of Igen -v- Wong. It therefore concluded the claimant had been thereby unlawfully victimised.
143. .11 Thus the Tribunal was satisfied that the claimant had been unlawfully discriminated against on the grounds of his religious belief and also by way of victimisation under the 1998 Order - provided that the said claim was in time and the Tribunal therefore had jurisdiction to hear it.

The second set of proceedings were presented to the Tribunal on 8 January 2002. Therefore, the events of 12 October 2001 and subsequent were within time. However, the Tribunal is satisfied that the events of 19 September 2001 were linked and not a separate isolated incident and that in the circumstances, there was a continuing discriminatory state of affairs during this period sufficient to be an act extending over a period. In the circumstances, the Tribunal was therefore satisfied that the said claims of unlawful discrimination in the second set of proceedings were in time and the Tribunal therefore had jurisdiction to hear them.

144. .12 For the reasons set out in relation to the first set of proceedings (see paragraph 8.2), the Tribunal was not satisfied the respondent had shown that it had taken the necessary steps as required by Article 36(4) of the 1998 Order. Further the Tribunal was of the opinion that if the respondent had given, subsequent to the initial investigation warnings/training under the harassment policy when there was an acknowledgement by Mr Wylie to the investigation team that the deliveries and keys were carried out by an employee, such action, if it had been taken, it would have been in advance of the acts, the subject matter of the second set of proceedings. Such action, if taken, would have been reasonably practicable and of particular relevance to any such defence.
145. .13 The Tribunal was satisfied that the respondent's failure to take any action, in September/October 2001, and throw the whole onus upon the claimant to produce evidence before anything further would be done, was a breach of the implied term of trust and confidence. (See Bracebridge Engineering Limited -v- Derby (1990) IRLR 3) These failures were, in the Tribunal's view linked and connected. The Tribunal was further satisfied in the circumstances no issue of time arose, as the proceedings were brought within three months of his resignation on or about 9 November 2001.

There was clearly a build up in the situation in that the events of 19 September 2001 were followed soon thereafter by the events of 12 October 2001. At that time, Ms Grant had not been told of the phone call in July 2001. Ms Grant's reaction to the events of 19 September 2001 might have been understandable, if it had been an isolated one off incident; but by the time of the second telephone call it was clear that a pattern was emerging. In the Tribunal's view, in light of the second call and the past pattern of events, there was sufficient detail by that time for Ms Grant to have at least looked further into the claimant's complaint and, if necessary, take some action, as suggested above. This she resolutely refused to do. Ms Grant, without any medical evidence, had already suggested in the file note the claimant may suffer from paranoia (file note 29 March 2001). This had never been suggested by an doctor, including the company doctor. Neither Mr McGreevy nor Ms Grant had any medical expertise. To label a person as suffering from paranoia, in the absence of a medical diagnosis was particularly dangerous and emotive use of language. Even in the non medical sense as Ms Grant contended she used it, it was clear she had taken the view the claimant was a person who wrongly believed others were doing things to him and could not be believed when he made such allegations. Given this view by her it was not surprising therefore in the Tribunal's view that she was so dismissive of his further allegations. But this was not a view she was entitled to take, in the judgment of the Tribunal, in the absence of medical evidence of a diagnosis of paranoia.

Although, there was a breach by the respondent of the said term of trust and confidence, it would only be sufficient to establish a claim of constructive dismissal if it was sufficiently serious to justify the claimant leaving. Such a breach, in the Tribunal's opinion, was sufficiently serious in the circumstances.

However, it would only permit a claim of constructive dismissal to be established if the claimant left in response to the said breach.

146. .14 The Tribunal was not satisfied the claimant did leave in response to the said breach, but rather resigned and left the respondent's employment because of the job offer from Homefirst. It had always been his intention to do so, if an offer was made, when he originally attended the interview. The claimant knew arising from the correspondence from Ms Grant on 28 September 2001 and again on 22 October 2001 that she was not going to take any further action. This had again been made clear at the meeting with Mr Telford/Ms Grant on 31 October 2001. But yet at no time during this period did he make any suggestion he was going to leave because of what had happened. In contrast, he was throughout this period pursuing the job offer from Homefirst, attending the medical, with the assistance of his General Practitioner. He had decided to accept the offer when he informed her on 25 October 2001 he had obtained the post. This was the post he had originally decided to apply for in May 2001 and following interview had been placed on a waiting list. There was the further meeting with Homefirst on 5 November 2001 in relation to his previous convictions, which Homefirst had decided was not an obstacle. The only outstanding issue was not whether he would go to Homefirst but the actual start date. It was only at this time that the claimant, in his letter of resignation, attempted to link it to what had happened involving the respondent. The Tribunal believes if this had been the real reason, he would have raised it earlier and not waited until on or about 9 November 2001 when he had already decided to move to Homefirst.

In the circumstances the claimant was not constructively dismissed but resigned; and therefore no issue of unfair dismissal arises. The claimant's claim of unfair dismissal must therefore be dismissed.

147. .1 Having regard to the conclusions of the Tribunal, as to the liability of the respondent, the Tribunal then considered the compensation to which the claimant was entitled in relation to each set of proceedings.
148. .1 Case Reference Number 84/01FET
149. .1 The claimant, as found by the Tribunal, endured a series of acts of discriminatory harassment over a lengthy period commencing in or about July 1995, from shortly after he commenced his employment with the respondent, until in or about the end of November 2000, when he went on sick leave. The acts were of a serious nature and, in the view of the Tribunal, particularly offensive and hurtful. They involved acts not just in the workplace but also at his home. The Tribunal is satisfied that the claimant found the said acts very hurtful and upsetting, albeit he never complained throughout the period. In the circumstances, the Tribunal is satisfied he suffered considerable injury to his feelings.

In Vento -v- Chief Constable to West Yorkshire Police (No. 2) [2003] ICR 318, the Court of Appeal, as set out previously, found that sums in the high band were reserved "for the most serious cases", for example where there had been a "lengthy campaign of discriminatory harassment". The claimant had clearly endured such a campaign. At all times, in assessing the appropriate award to be made in relation to these matters, the Tribunal was aware of the degree of overlap between the injury to the claimant's feelings and the personal injuries suffered by him. In addition was the added difficulty of the necessity for the Tribunal to make an award in each set of proceedings and to avoid any overlap of compensation or any element of double recovery. The Tribunal decided an appropriate award for injury to the claimant's feelings in this matter would be £15,000.00.

The Tribunal further considered that the said award for injury to feelings should be increased to £17,500.00 to take account of an award of aggravated damages (see further McConnell -v- Police Authority for Northern Ireland [1997] IRLR 635). The Tribunal found the various failures of the respondent to discover relevant documents, which were clearly discoverable, until during the hearing of the proceedings particularly insulting and high handed. The Tribunal also took into account the failure to refer the claimant to the harassment adviser throughout these proceedings, who clearly could have assisted the claimant and given him support in relation to his complaint. The Tribunal also took into account the various criticisms found by the Tribunal of the manner in which the investigation team conducted the investigation, but, in particular, the failure of the investigation team, having accepted the deliveries and the incident of the keys involved an employee, to take any action. The team, despite their acceptance of employee involvement, albeit unidentified, did not give a general warning or reiterate the claims of the harassment policy; but, in particular never acknowledged to the claimant their acceptance of such involvement. Rather, the team rejected the claimant's claim in its entirety. Further, the report of the investigation team into the further allegations was never shown to the claimant. Although there were various incidents investigated, only the McHendry incident was dealt with in any detail in the said report and the further incidents were summarily dismissed in two lines. All of this illustrated, in the Tribunal's opinion, a dismissive and high-handed attitude to the investigation of the claimant's further complaints.

Further in the file note dated 29 March 2001 in relation to the initial investigation of the claimant's complaints, Ms Grant, with the agreement of Mr McGreevy suggested, "the claimant may suffer from paranoia". This was certainly highly emotive use of language - but in the absence of any medical diagnosis to support it, particularly insulting with a most hurtful stigma attached.

150. .2 In relation to the injury to the claimant's feelings, the Tribunal accepted the claimant had sustained personal injury for which the Tribunal was entitled to make an award of compensation (See further Sheriff -v- Klyne Tugs (Lowestoft) Limited [1999] ICR 1170). As set out previously, there is a degree of overlap between the two injuries which the Tribunal has had to take into account. The Tribunal was, as set out previously, satisfied that by reason of the said discriminatory harassment the claimant had sustained an adjustment reaction with pronounced depressive and anxiety features. The symptoms of the said injury, were particularly severe and had required the claimant to take from in or about early 2001 anti-depressant medication and sick leave until the end of that year.

The Tribunal was of the opinion, having had regard to the Guidelines for the Assessment of General Damages In Personal Injury Cases in Northern (2^nd Edition) the claimant's said injury was an injury which could be described, in the circumstances, as a moderate psychiatric injury. The Guidelines suggest that such an injury would fall in the range of £7,500.00 to £30,000.00. However, as noted by the Tribunal, there was a degree of exaggeration by the claimant of his symptoms and indeed, the claimant was not as unwell as he at times suggested. For example, he was able to attend a successful interview for employment with Homefirst in or about May 2001. Similarly, from late 2002 he had played a significant and demanding role in the setting up of the dry cleaning business. In doing so, the Tribunal did not consider he was suffering as much as he stated and was clearly improving - albeit he had had to continue on anti-depressant medication. The Tribunal was of the view that, since he was no longer working for the respondent and, by his own choice, was now working in the dry cleaning business with his wife there would be continuing improvement in his condition.

Having regard to the foregoing and the overlap between the two sets of proceedings, the Tribunal concluded an appropriate award would be £17,500.00. In doing so it took into account that the period the claimant suffered most was the period prior to the presentation of the second set of proceedings.

151. .3 The claimant was on sick leave from on or about 21 November 2000 until his resignation on 9 November 2001. The claimant's representative had prepared a Schedule of Loss. In the absence of any evidence to dispute the figures set out therein, insofar as relevant, the Tribunal was prepared to accept them.

During the said period he was on full pay sick leave and subsequently half pay sick leave, as set out below.

The Tribunal calculated the claimant's loss in this period as follows:-

152. Loss of Earnings

Average net weekly earnings at

Ulsterbus = £ 293.00

(a) Average net weekly earnings

on full sick pay leave

(Nov 2000 - Apr 2001) = £ 156.00

Difference = £ 137.00

No. of weeks on full pay sick

leave is 23 - 23 weeks x £137.00 = £3,151.00 - Loss

(b) Average net weekly earnings on

half sick pay leave

(May 2001 - Aug 2001) = £ 136.40

Difference = £ 156.60

No. of weeks on half pay sick

leave is 18 -

18 weeks x £156.60 = £2,818.80 - Loss

(c) Loss of earnings (Sept 2001 -

9 Nov 2001) -

9 weeks x £293.00 = £2,637.00

2. Loss of Pension Contributions

Average weekly pension contribution = £ 12.42

(a) Average weekly pension

contribution on half pay sick leave = £ 6.21

Difference = £ 6.21

18 weeks x £6.21 = £ 111.78 - Loss

(b) Estimated pension contribution

(Sept 2001 - 9 Nov 2001) -

18 weeks x £12.42 = £ 223.56

Total Loss in period = £8,942.14

153. .4 The Tribunal considered whether to award interest under the provisions of the Fair Employment Tribunal (Remedies) Order (Northern Ireland) 1995 and decided that it should award interest on the sums awarded. Under Article 7 of the said Order interest on an award for injury to feelings normally runs from the date of the act of discrimination complained of to the date of calculation. In relation to all other sums awarded, interest is normally calculated for the period from the mid point date (ie., the date half way through the period beginning on the date of the act of discrimination to which the award relates and ending on the date of calculation).

However, under the said Order (Article 6(3)) where, having regard to the circumstances of the case as a whole or to a particular sum in the award, the Tribunal considers serious injustice will be caused if the interest were to be awarded in respect of the periods set out above, the Tribunal is entitled to calculate interest by reference to different periods or use different periods for different sums in the award.

In view of the fact the claimant made no complaint until he complained to the company doctor on or about 15 December 2000, the Tribunal decided that serious injustice would be caused if the normal periods of interest, as set out above, were applied in this case. The acts of discrimination commenced in or about July 1995 and it was only following his visit to the company doctor that the claimant exhibited symptoms relating to the said personal injury.

The Tribunal therefore decided that interest should be calculated, in relation to the award for injury to feelings from 1 January 2001 to the date of calculation, namely 23 March 2007; and in relation to the award for personal injury and loss of earnings, from the mid point, namely 15 February 2004.

154. .5 Award of Compensation

(i) Injury to Feelings - £17,500.00

Interest @ 8% per annum from

1 January 2001 - 23 March 2007 - £ 8,715.00

(ii) Personal Injury - £17,500.00

Interest @ 8% per annum from

15 February 2004 - 23 March 2007 - £ 4,338.00

(iii) Financial Loss - £ 8,942.14

Interest @ 8% per annum from

15 February 2004 - 23 March 2007 - £ 2,216.55

TOTAL - £59,211.69

=========

155. .1 Case Reference Numbers - 28/02FET; 140/02.
156. .2 The Tribunal was satisfied that the claimant continued to suffer injury to his feelings by the continuing acts of discriminatory harassment but also victimisation which occurred in the autumn of 2001. In the circumstances, and having regard to the sums already awarded in the first set of proceedings, the Tribunal concluded an appropriate award for injury to feelings would be in the sum of £6,000.00. The Tribunal took into account that, although this further injury compounded the earlier injury, it was of limited duration. The Tribunal further concluded that the said award should also be increased to £7,500.00 to include an award of aggravated damages. Again, the failure to provide discovery and to refer to the harassment adviser were considered by the Tribunal particularly relevant.

Ms Grant, having already concluded, albeit with no medical evidence, that the claimant might be suffering from paranoia, was clearly not prepared, in the opinion of the Tribunal to countenance the possibility there might be truth in the claimant's further complaints; and was just a further example of the claimant wrongly believing others were getting at him. To do so was particularly insulting and high handed.

157. .3 In relation to the claimant's said personal injuries, the claimant continued to have symptoms in the period after the autumn of 2001; but as 2002 progressed the claimant continued to improve as he involved himself in a significant way in the start up of the dry cleaning business. As stated previously, in relation to the first set of proceedings, the Tribunal was satisfied that there would be continuing improvement in his condition.

The Tribunal, having regard to the sum awarded in the first set of proceedings took the view an appropriate award would be £7,500.00.

158. .4 The Tribunal having concluded the claimant was not constructively dismissed and decided to resign and no issue of unfair dismissal arose, was of the opinion that, in the circumstances, the relevant chain of causation had been broken and he was not therefore entitled to any loss of earnings from the date of his said resignation.
159. .5 The Tribunal considered that in relation to the said sum, interest should be awarded pursuant to the Fair Employment Tribunal (Remedies) Order (Northern Ireland) 1995; and that interest on the award for injury to feelings should be from the date of the act of discrimination (on or about 19 September 2001) to the date of calculation, namely 23 March 2007. In relation to the award for personal injury, the Tribunal concluded the interest should be calculated from the mid point date, namely 20 June 2004 to the date of calculation, namely 23 March 2007.

Award of Compensation

(I) Injury to Feelings - £ 7,500.00

Interest @ 8% per annum from

19 September 2001 - 23 March 2007 - £ 3,300.00

(ii) Personal Injury - £ 7,500.00

Interest @ 8% per annum from

20 June 2004 - 23 March 2007 - £ 1,650.00

TOTAL - £19,950.00

=========

160. .1 These are relevant decisions for the purposes of the Fair Employment Tribunal (Interest) Order (Northern Ireland) 1992.

Chairman:

Date and place of hearing: 12 January - 16 January 2004,

19 January - 22 January 2004,

13 February 2004,

26 April - 30 April 2004,

4 May - 7 May 2004,

11 - 13 October 2004,

4 - 5 November and 29 - 30 November 2004,

1 - 2 December 2004 and

21 December 2004 at Belfast.

Date decision recorded in register and issued to parties: